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[Federal Register Volume 75, Number 141 (Friday, July 23, 2010)]
[Rules and Regulations]
[Pages 43039-43042]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18086]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Doc. No. AMS-FV-10-0054; FV10-924-2 IR]

Fresh Prunes Grown in Designated Counties in Washington and in 
Umatilla County, OR; Suspension of Reporting and Assessment 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule suspends the reporting and assessment requirements 
prescribed under the Washington-Oregon fresh prune marketing order. The 
marketing order regulates the handling of fresh prunes grown in 
designated counties in Washington and in Umatilla County, Oregon, and 
is administered locally by the Washington-Oregon Fresh Prune Marketing 
Committee (Committee). On June 1, 2010, the Committee unanimously voted 
to terminate Marketing Order No. 924. Since the only regulatory actions 
currently in effect are the reporting and assessment requirements, the 
Committee included a recommendation

[[Page 43040]]

to immediately suspend these activities while USDA processes the 
termination request. The reporting and assessment requirements will 
remain suspended until reinstated or permanently terminated.

DATES: Effective July 24, 2010, 7 CFR 924.160 and 924.236 are suspended 
indefinitely; comments received by September 21, 2010 will be 
considered prior to confirmation as a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. 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: Robert Curry or Gary Olson, Northwest 
Marketing Field Office, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA; Telephone: (503) 326-2724, Fax: 
(503) 326-7440, or E-mail: Robert.Curry@ams.usda.gov or 
GaryD.Olson@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 rule is issued under Marketing 
Agreement and Order No. 924 (7 CFR part 924), regulating the handling 
of fresh prunes grown in designated counties in Washington and in 
Umatilla County, Oregon, 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, Washington-
Oregon fresh prune handlers are subject to assessments. Funds to 
administer the order are derived from such assessments. For the 2009-
2010 fiscal period, an assessment rate of $2.00 per ton of fresh prunes 
handled was approved by USDA, to continue in effect indefinitely unless 
modified, suspended, or terminated. This action suspends the reporting 
requirements and the assessment rate for the 2010-2011 fiscal period, 
which began April 1, 2010, both remaining suspended until reinstated or 
permanently 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. 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.
    The Committee meets regularly to consider recommendations for 
modification, suspension, or termination of the Washington-Oregon fresh 
prune order's regulatory requirements, which have been issued on a 
continuing basis. Committee meetings are open to the public and 
interested persons may express their views at these meetings. The USDA 
reviews Committee recommendations, including information provided by 
the Committee and from other available sources, and determines whether 
modification, suspension, or termination of the regulatory requirements 
would tend to effectuate the declared policy of the Act.
    This rule suspends Sec.  924.236, which established an assessment 
rate of $2.00 per ton on or after April 1, 2009, and Sec.  924.160, 
which implements assessment reporting requirements. On June 1, 2010, 
the Committee unanimously voted in favor of requesting that USDA 
terminate the order, and included a recommendation that the reporting 
and assessment requirements--the only regulatory activities still in 
effect at this time--be suspended while termination of the order is 
being processed by USDA under a separate regulatory action.
    Section 924.41 of the order provides authority for the Committee to 
assess handlers for their pro rata share of the expenses authorized 
each fiscal period. Section 924.60 of the order authorizes the 
Committee to collect reports and other information as necessary for the 
Committee to perform its duties under the order. Section 924.236 
implements the continuing assessment rate, while Sec.  924.160 
implements the requirement that handlers report specified information 
to the Committee prior to October 30 of each year. This report is used 
as a basis for the Committee's collection of assessments from handlers.
    Marketing Order No. 924 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 authority for inspection requirements. The 
order also authorizes production research and marketing research and 
development projects, as well as the necessary reporting and 
recordkeeping functions required for operation. Based on the 
Committee's recommendation, USDA suspended the order's handling 
regulations in May 2006. These handling regulations required that 
certain varieties of fresh prunes be inspected to ensure that they met 
minimum grade standards. The Committee believed that the costs of 
inspection outweighed the benefits provided from having the regulatory 
requirements in effect.
    Following the regulatory suspension, the Committee continued to 
collect assessments in order to maintain its functionality. The 
Committee felt that it should continue to fund its full operational 
capability in order to gauge the merits of the handling regulation 
suspension. Therefore, when it recommended suspension of the handling 
regulations, the Committee also recommended the establishment of 
reporting requirements for the purpose of tracking shipments and 
collecting assessments. Prior to the handling regulation suspension, 
the Committee relied on the Federal-State Inspection Service to provide 
it with copies of the certificates that accompany each lot of inspected 
fresh prunes. The inspection certificates contained information 
necessary for the Committee to collect assessments from each of the 
regulated handlers. On May 10, 2006, a new section 924.160 and 
Committee form

[[Page 43041]]

``Handler Statement for Washington-Oregon Fresh Prunes'' were 
implemented pursuant to publication in the Federal Register (71 FR 
26817). The Committee used this form to collect fresh prune shipment 
information and to monitor market and crop conditions, thus helping it 
to make a determination regarding the impact of non-regulation on the 
industry.
    The Washington-Oregon fresh prune industry has been in decline for 
many years, with acreage and production trending downward. This 
contributed to the suspension of the handling regulations in 2006. 
Since the handling regulations were suspended, the Committee has taken 
the opportunity to evaluate the suspension's effect on the marketing of 
fresh prunes over the past four years. Based on its analysis, the 
Committee has determined that the regulatory suspension has not 
negatively impacted the marketing of fresh prunes. Thus, the Committee 
determined that there is no longer a need for the order, and 
recommended its termination at a meeting held in Prosser, Washington, 
on June 1, 2010.
    In addition, the Committee determined that there is no need to 
continue collecting assessments and requiring reports for the sole 
purpose of maintaining its functionality, thus recommended that the 
assessment rate and reporting requirements be immediately suspended. 
This action will relieve the industry of the assessment and reporting 
burden during the pendency of the termination process.
    The Committee recommended a budget of $6,085 for the remainder of 
the period leading to order termination. The budgeted amount was 
established on the basis of the amount remaining in the Committee's 
monetary reserve. The budget in its entirety will provide for such 
operating expenses as are necessary during the termination process.

Initial Regulatory Flexibility Analysis

    Pursuant to 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 action 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 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 the 
National Agricultural Statistics Service, the average producer price 
for fresh prunes was approximately $385 per ton. With 4,260 tons of 
fresh prunes shipped from the Washington and Oregon productions 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, thus 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 suspends the reporting requirements regarding the 
collection of information pertaining to shipments and assessments under 
the order. It also suspends the assessment rate of $2.00 per ton 
established for the period beginning April 1, 2009, and continuing 
until modified, suspended, or terminated by USDA. The Committee 
recommended a budget of expenditures of $6,085 for the period beginning 
on April 1, 2010, and ending with termination of the order. This budget 
is based on the Committee's monetary reserve balance on April 1, 2010. 
Major expenses for the budget period beginning on April 1, 2010, are 
for Committee travel, the financial review, and management 
compensation.
    The Committee made the recommendation to suspend the reporting and 
assessment requirements as an adjunct to the recommendation to 
terminate the order. As such, the only other alternative would have 
been to continue to assess handlers and to require reports, options not 
considered practicable since additional funds are not required.
    This action suspends the reporting and assessment obligations 
imposed on handlers. During any period when effective, assessments are 
applied uniformly on all handlers and some of the costs may be passed 
on to producers. This suspension of the reporting and assessment 
requirements reduces the burden on handlers and should also reduce the 
burden on producers.
    This rule will 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 comments on this interim final rule, including 
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 suspension of the reporting and 
assessment requirements prescribed under the Washington-Oregon fresh 
prune marketing order. Any comments received will be considered prior 
to finalization of this rule.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
this interim final rule, as hereinafter set forth, will tend to 
effectuate the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect and that good cause

[[Page 43042]]

exists for not postponing the effective date of this rule until 30 days 
after publication in the Federal Register because: (1) The Committee 
has recommended prompt termination of the marketing order regulating 
the handling of Washington-Oregon fresh prunes and no longer requires 
reports or assessment income; (2) this action is a relaxation in the 
order's regulatory requirements; (3) the Committee unanimously 
recommended these changes at a public meeting and interested parties 
had an opportunity to provide input; 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 in 7 CFR Part 924

    Prunes, Marketing agreements, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 924 is amended as 
follows:

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

0
1. The authority citation for 7 CFR part 924 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.

Sec. Sec.  924.160 and 924.236  [Suspended]

0
2. Sections 924.160 and 924.236 are suspended in their entirety.

    Dated: July 20, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-18086 Filed 7-22-10; 8:45 am]
BILLING CODE 3410-02-P
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