[Federal Register: August 26, 2005 (Volume 70, Number 165)]
[Rules and Regulations]
[Page 50153-50156]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au05-4]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 993 and 999
[Docket No. FV05-993-2 FIR]
Dried Prunes Produced in California; Suspension of Handling and
Reporting Requirements, Extension of the Suspension of Outgoing
Inspection and Volume Control Regulations, and Extension of the
Suspension of the Prune Import Regulation
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule; affirmation of interim rule as final rule.
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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule suspending indefinitely all
remaining handling and most reporting requirements under Marketing
Order No. 993. The marketing order regulates the handling of dried
prunes produced in California and is administered locally by the Prune
Marketing Committee (committee). The interim final rule being adopted
by this action also indefinitely extends the suspensions of the
outgoing inspection and prune import regulations and volume control
regulations, currently temporarily suspended until August 1, 2006, and
August 1, 2008, respectively. The interim final rule was effective
August 1, 2005.
DATES: Effective September 26, 2005.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA; telephone: (559) 487-5901, Fax: (559)
487-5906; or Kathy Finn, Formal Rulemaking Team Leader, 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.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
[[Page 50154]]
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: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
agreement and Order No. 993, both as amended (7 CFR part 993),
regulating the handling of dried prunes produced in California,
hereinafter referred to as the ``order.'' The marketing agreement and
order are effective under the Agricultural Marketing Agreement Act of
1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the
``Act.''
USDA is issuing this rule in conformance with Executive Order
12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have a retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
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.
SUMMARY: This rule adopts the suspension of the handling and reporting
requirements under the marketing order and the prune import regulation,
beginning with the 2005-2006 crop year, and continuing indefinitely.
The provisions could either be reactivated or terminated. The 2005-2006
crop year begins on August 1, 2005. This action also adopts the
extension of the current temporary suspensions of the outgoing
inspection and the volume control regulations. This rule was
unanimously recommended by the committee at a meeting on March 15,
2005.
Marketing Order Authority for Suspension
Section 993.90(a) of the prune marketing order provides, in part,
that the Secretary ``shall terminate or suspend the operations of any
or all of the provisions of the subpart, whenever he finds that such
provisions do not tend to effectuate the declared policy of the
``Act.'' Information from the committee, or other sources, may be used
by the Secretary in making the determination.
Being cognizant that some growers and packers believe the marketing
order has become overly complex and restrictive in today's more
technologically-advanced, global market, the committee has held task
force meetings over the last two years to solicit input from the
industry on amending the order. However, little progress has resulted
from those meetings concerning the best method to streamline the
existing order and update it to reflect modern packing methods and
marketing strategies. Thus, at its meeting on March 15, 2005, the
committee voted unanimously to recommend to USDA that the handling and
reporting requirements, including the currently-suspended outgoing
inspection and volume-control regulations, be suspended indefinitely.
Because the committee would need to obtain information on the
tonnage received by each handler to properly allocate committee member
and alternate positions, and to assess handlers for their prorate share
of expenses, the committee has arranged with the California Department
of Food and Agriculture and the California Dried Plum Board (CDPB) to
receive such information as needed from CDPB for this purpose.
On April 16, 2004, the committee approved a motion to submit a
request to USDA no later than January 15, 2005, to suspend the
marketing order for one year, effective August 1, 2005, through July
31, 2006. At that time, the committee believed that the lead time
provided by this recommended suspension permits the industry to
consider what portions of the suspended Federal marketing order should
be added to the California State marketing order for dried plums.
In accordance with the committee's April 16, 2004, resolution, on
December 8, 2004, it recommended to USDA that the marketing order be
suspended for one crop year, beginning August 1, 2005, and requested
that the current committee members to be appointed as trustees during
the suspension period.
On February 23, 2005, the Executive Committee reconsidered their
recommendation to suspend the entire order and have the current members
named as trustees. The Executive Committee made a subsequent
recommendation to committee to rescind the December 8, 2004,
recommendation. The Executive Committee then recommended the handling
and reporting requirements be suspended indefinitely, and forwarded
that revised recommendation to the full committee, as well. The revised
recommendation also included extending the temporary suspensions of
outgoing inspection and volume control regulations, which would have
ended on August 1 of 2006 and 2008, respectively. As stated earlier, on
March 15, 2005, the committee revised its recommendation accordingly.
Prune Import Regulations
Section 8e of the Act provides that when certain domestically-
produced commodities, including prunes, are regulated under a Federal
marketing order, imports of that commodity must meet the same or
comparable grade, size, quality, and maturity requirements. Since this
rule indefinitely suspends the handling regulations, including grade,
size, and quality requirements, these requirements will continue to be
suspended in the import regulations. Currently, the prune import
regulations are suspended through July 31, 2006.
U.S. imports of dried prunes are insignificant compared to U.S.
production. In 2002, while the U.S. produced 158,000 tons of dried
prunes, only 616 tons were imported. In that year, the domestically-
produced tonnage was over 250 times larger than the imported tonnage.
In recent years, as volumes of domestically-produced prunes have
fluctuated imports have also fluctuated, but imported prunes continue
to represent a very small portion of the available prune products in
the U.S. market.
Argentina, Chile, France, Mexico, Iran, and Turkey export prunes to
the United States, with Argentina accounting for approximately 90
percent of all U.S. imports.
Handling Requirements
Under the order, Sec. Sec. 993.48 through 993.59, and Sec. Sec.
993.62 authorized requirements upon handlers to meet grade and size
requirements, obtain both incoming and outgoing inspection, label
prunes appropriately, and hold a portion of the crop in reserve. The
order's rules and regulations establish similar requirements.
[[Page 50155]]
Currently the provisions for outgoing inspections and reserve
disposition are suspended in both the order and the order's rules and
regulations until August 1, 2006, and August 1, 2008, respectively.
This rule suspends indefinitely all the remaining handling
requirements.
Reporting Requirements
Under Sec. Sec. 993.71 through 993.75, the order also includes
authority to require that handlers file reports with the committee on
acquisitions, accountings, holdings, uses, sales, and shipments of
prunes. The order's rules and regulations include similar requirements,
except that some of these provisions are currently suspended, as they
relate to volume control requirements.
This action suspends indefinitely those requirements, along with
other handling requirements and the reporting requirements.
As stated previously, the committee would enter into an agreement
with the CDPB to collect information necessary for allocating committee
member and alternate member positions and for continuing assessments on
a limited basis.
A Listing of Marketing Order Provisions To Be Suspended
As noted, handling and reporting requirements will be suspended
indefinitely. Included are provisions in the order regarding outgoing
inspection and volume control regulations, which are currently
temporarily suspended until August 1, 2006, and August 1, 2008,
respectively.
In a conforming action, the provisions related to marketing policy
are suspended, as well. Under the order the committee is required to
establish a marketing policy annually if handling requirements are
recommended. If no handling regulations are recommended due to
suspension, no marketing policy statement is required.
Certain provisions and parts of certain provisions are currently
suspended until a specified time. This rule will indefinitely suspend
those provisions or parts of certain provisions, as well as additional
provisions. The following list of provisions or parts of provisions
being suspended are listed below chronologically and notations are made
to clarify which provisions or parts of provisions are currently
suspended.
Section 993.21d Reserve prunes (currently suspended through 2008)
Section 993.33 Voting procedure (partially suspended through 2008)
Section 993.36(i) Duties (currently suspended through 2008)
Section 993.41 Marketing policy
Section 993.48 Regulation
Section 993.49 Incoming regulation
Section 993.50 Outgoing regulation (partially suspended through
2006)
Section 993.51 Inspection and certification (partially suspended
through 2006)
Section 993.52 Modification
Section 993.53 Above parity situations
Section 993.54 Establishment of salable and reserve percentages
(currently suspended through 2008)
Section 993.55 Application of salable and reserve percentages after
end of crop year (currently suspended through 2008)
Section 993.56 Reserve obligation (currently suspended through
2008)
Section 993.57 Holding requirement and delivery (currently
suspended through 2008)
Section 993.58 Deferment of time for withholding (currently
suspended through 2008)
Section 993.59 Payment to handlers for services (currently
suspended through 2008)
Section 993.62 Diversion privileges (currently suspended through
2008)
Section 993.65 Disposition of reserve prunes (currently suspended
through 2008)
Section 993.72 Reports of acquisitions, sales, uses, and shipments
Section 993.73 Other reports
Section 993.74 Records
Section 993.75 Verification of reports
Section 993.97 Exhibit A; minimum standards (partially suspended
through 2006)
Section 993.104 Lot
Section 993.105 Size count
Section 993.106 In-line inspection
Section 993.107 Floor inspection
Section 993.108 Non-human consumption outlet
Section 993.149 Receiving of prunes by handlers
Section 993.150 Disposition of prunes by handlers (partially
suspended through 2006)
Section 993.156 Application of reserve percentage (currently
suspended through 2008)
Section 993.157 Holding and delivery of reserve prunes (currently
suspended through 2008)
Section 993.158 Deferment of reserve withholding (currently
suspended through 2008)
Section 993.159 Payments for services performed with respect to
reserve tonnage prunes (currently suspended through 2008)
Section 993.162 Voluntary prune plum diversion (currently suspended
through 2008)
Section 993.165 Disposition of reserve prunes (currently suspended
through 2008)
Section 993.172 Reports of holdings, receipts, uses, and shipments
(partially suspended through 2008)
Section 993.173 Reports of accounting (partially suspended through
2008)
Section 993.174 Records
Section 993.400 Modifications
Section 993.409 Undersized prune regulation for the 2002-03 crop
year
Section 993.501 Consumer package of prunes
Section 993.503 Size category
Section 993.504 In-line inspection
Section 993.505 Floor inspection
Section 993.506 Lot
Section 993.515 Size categories (currently suspended through 2006)
Section 993.516 Tolerance and limitations (currently suspended
through 2006)
Section 993.517 Identification (currently suspended through 2006)
Section 993.518 Compliance (currently suspended through 2006)
Section 993.601 More restrictive grade regulation (partially
suspended through 2006)
Section 993.602 Maximum tolerances
Final Regulatory Flexibility Analysis
Pursuant to 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 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.
There are approximately 1,100 producers of dried prunes in the
production area and approximately 22 handlers subject to regulation
under the marketing order. Small agricultural producers are defined by
the Small Business Administration (13 CFR 121.201) as those having
annual receipts of less than $750,000, and small agricultural service
firms are defined as those whose annual receipts are less than
$6,000,000.
An industry profile shows that 8 out of 21 handlers (38 percent)
shipped over $6,000,000 worth of dried prunes in
[[Page 50156]]
2003 and could be considered large handlers by the Small Business
Administration. Thirteen of the 21 handlers (62 percent) shipped under
$6,000,000 worth of prunes and could be considered small handlers. An
estimated 32 producers, or less than 3 percent of the 1,100 total
producers, would be considered large growers with annual incomes over
$750,000. The majority of handlers and producers of California dried
prunes may be classified as small entities.
In addition, there are an estimated 30 importers, and one third-
party entity that performs inspections under the order. USDA does not
have precise information on these entities, but believes that the
majority of the importers and the third-party inspection agency are
small entities.
As recommended by the Committee, this rule indefinitely suspends
handling and reporting requirements under the marketing order,
including extending the temporary suspensions of outgoing inspection
requirements and reporting regulations and the import regulations.
Impact of the Regulation
This action reduces the reporting and recordkeeping requirements
for California prune handlers and importers; and reduces the
committee's, prune handlers', and prune importers' associated
administrative costs. This action also reduces the number of
inspections performed by the inspection agency for both handlers and
importers.
The benefits of this final rule are expected to accrue to all prune
handlers and importers regardless of their size.
Alternatives Considered
The deliberations about suspension of the marketing order for one
year began at meetings held on April 3 and May 1, 2003, and continued
to the present. In April 2004, the committee believed that such a
suspension provides the industry with an opportunity to operate without
regulation. For some members, a suspension was preferable to
termination.
At the December 8, 2004, meeting, the committee discussed the
impact of and alternatives to suspending the entire marketing order,
and at the February 23, 2005, Executive Committee meeting, the members
and industry representatives discussed the impact of and alternatives
to suspending handling and reporting requirements, including extending
the current suspensions of outgoing inspection requirements and
reporting regulations.
At the March 15, 2005, committee meeting, the members received the
recommendations of the Executive Committee and, being in unanimous
accord, voted to rescind their previous recommendation to suspend the
entire order in favor of recommending that the handling and reporting
requirements be suspended indefinitely, including the currently-
suspended outgoing inspection and volume control regulations.
The suspension permits the industry to operate for an indefinite
period of time without most order requirements. This will allow growers
and handlers time to consider which provisions in the marketing order
might continue to meet their future needs.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large California dried prune handlers.
On the contrary, this action will remove reporting requirements on all
prune handlers indefinitely. 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.
The Department has not identified any relevant Federal rules that
duplicate, overlap or conflict with this final rule.
In addition, the committee's meetings were widely publicized
throughout the prune industry and all interested persons were invited
to attend the meeting and participate in committee deliberations on all
issues at any meeting in the last two years, including task force
meetings. Like all committee meetings, the April 16 and December 8,
2004, meetings; and the February 23 and March 15, 2005, meetings were
public meetings; and all entities, both large and small, were
encouraged to express views on this issue. The committee itself is
composed of twenty-two members. Seven are handlers, fourteen are
producers, and one is a public member. Moreover, the committee, its
Executive Committee, and the marketing order task force, provide broad
industry representation. Thus, this rule reflects their considerable
deliberations and determinations. Finally, interested persons were
invited to submit information on the regulatory and informational
impacts of this action on small business.
Further, the Committee's meeting was widely publicized throughout
the Prune industry and all interested persons were invited to attend
the meeting and participate in Committee deliberations. Like all
Committee meetings, the March 15, 2005, meeting was a public meeting
and all entities, both large and small, were able to express their
views on this issue.
An interim final rule concerning this action was published in the
Federal Register on May 27, 2005. Copies of the rule were mailed by the
Committee staff to all Committee members and Prune handlers. In
addition, the rule was made available through the Internet by USDA and
the Office of the Federal Register. That rule provided for a 60-day
comment period which ended July 26, 2005. No comments were received.
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 Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
The U.S. Trade Representative has reviewed this final rule and
concurs with its issuance.
After consideration of all relevant material presented, including
the committee's recommendation, and other information, it is found that
finalizing the interim final rule, without change, as published in the
Federal Register (70 FR 30610, May 27, 2005) will tend to effectuate
the declared policy of the Act.
List of Subjects
7 CFR Part 993
Marketing agreements, Plums, Prunes, Reporting and recordkeeping
requirements.
7 CFR Part 999
Dates, Filberts, Food grades and standards, Imports, Nuts, Plums,
Prunes, Raisins, Reporting and recording keeping requirements, Walnuts.
0
Accordingly, the interim final rule amending 7 CFR Part 993 and 999
which was published at 70 FR 30610 on May 27, 2005, is adopted as a
final rule without change.
Dated: August 22, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-16996 Filed 8-25-05; 8:45 am]
BILLING CODE 3410-02-P