Proposed Rule2023-22333
Dried Prunes Produced in California; Suspension of the Marketing Order
Primary source
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Published
October 12, 2023
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This proposed rule would suspend the Federal marketing order regulating dried prunes produced in California (Order) effective at the beginning of the 2023-2024 crop year. After operating for 18 years without handling regulations, the Prune Administrative Committee (Committee) recommended the Agricultural Marketing Service (AMS) indefinitely suspend the Order. After reviewing the Committee's recommendation, AMS determined that regulatory suspension with a sunset provision of seven years is appropriate. This suspension period would extend through the end of the 2029-2030 crop year and would provide industry sufficient time to assess whether the Order's reinstatement is beneficial. If no recommendation is made by the Committee to reinstate the Order by the end of the 2029-2030 crop year, AMS would proceed to terminate the Order.
Full Text
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<title>Federal Register, Volume 88 Issue 196 (Thursday, October 12, 2023)</title>
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[Federal Register Volume 88, Number 196 (Thursday, October 12, 2023)]
[Proposed Rules]
[Pages 70608-70610]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-22333]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 /
Proposed Rules
[[Page 70608]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 993
[Doc. No. AMS-SC-23-0021]
Dried Prunes Produced in California; Suspension of the Marketing
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would suspend the Federal marketing order
regulating dried prunes produced in California (Order) effective at the
beginning of the 2023-2024 crop year. After operating for 18 years
without handling regulations, the Prune Administrative Committee
(Committee) recommended the Agricultural Marketing Service (AMS)
indefinitely suspend the Order. After reviewing the Committee's
recommendation, AMS determined that regulatory suspension with a sunset
provision of seven years is appropriate. This suspension period would
extend through the end of the 2029-2030 crop year and would provide
industry sufficient time to assess whether the Order's reinstatement is
beneficial. If no recommendation is made by the Committee to reinstate
the Order by the end of the 2029-2030 crop year, AMS would proceed to
terminate the Order.
DATES: Comments must be received by November 13, 2023 to be assured
consideration.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. Comments may be sent to the Docket
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA,
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237.
Comments may also be sent to the Docket Clerk electronically by Email:
<a href="/cdn-cgi/l/email-protection#e9a4889b828c9d80878ea69b8d8c9baa8684848c879da99c9a8d88c78e869f"><span class="__cf_email__" data-cfemail="5d103c2f36382934333a122f39382f1e3230303833291d282e393c733a322b">[email protected]</span></a> or via the internet at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments should reference the document number and
the date and page number of this issue of the Federal Register. All
comments submitted in response to this proposed rule will be included
in the record and will be made available to the public and can be
viewed at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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: Jeremy Sasselli, Marketing Specialist,
or Gary Olson, Chief, West Region Branch, Market Development Division,
Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, or
Email: <a href="/cdn-cgi/l/email-protection#86cce3f4e3ebffa8d5e7f5f5e3eaeaefc6f3f5e2e7a8e1e9f0"><span class="__cf_email__" data-cfemail="93d9f6e1f6feeabdc0f2e0e0f6fffffad3e6e0f7f2bdf4fce5">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#a6e1c7d4dfe288e9cad5c9c8e6d3d5c2c788c1c9d0"><span class="__cf_email__" data-cfemail="e0a7819299a4ceaf8c938f8ea095938481ce878f96">[email protected]</span></a>.
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Market Development Division,
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email:
<a href="/cdn-cgi/l/email-protection#affdc6ccc7ceddcb81e3c0d8caddefdadccbce81c8c0d9"><span class="__cf_email__" data-cfemail="d381bab0bbb2a1b7fd9fbca4b6a193a6a0b7b2fdb4bca5">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This proposed action, pursuant to 5 U.S.C.
553, proposes to amend regulations issued to carry out a marketing
order as defined in 7 CFR 900.2(j). This proposed rule is issued under
Marketing Agreement No. 110 and Marketing Order No. 993, both as
amended (7 CFR part 993), regulating the handling of dried prunes
produced in California. Part 993 (referred to as 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
Prune Administrative Committee (Committee) locally administers the
Order and is comprised of producers and handlers of dried prunes
operating within the area of production, and one public member.
The Agricultural Marketing Service (AMS) is issuing this proposed
rule in conformance with Executive Orders 12866, 13563, and 14094.
Executive Orders 12866 and 13563 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. Executive
Order 14094 reaffirms, supplements, and updates Executive Order 12866
and further directs agencies to solicit and consider input from a wide
range of affected and interested parties through a variety of means.
This action falls within a category of regulatory actions that the
Office of Management and Budget (OMB) exempted from Executive Order
12866 review.
This proposed rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments, which
requires agencies to consider whether their rulemaking actions would
have Tribal implications. AMS has determined that this proposed rule is
unlikely to have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This proposed rule is not intended to have
retroactive effect, prior to crop year 2023-2024.
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 the United States
Department of Agriculture (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 proposed rule would suspend the Order's regulatory provisions.
The Committee recommended this action at its March 22, 2023, meeting.
Section
[[Page 70609]]
993.90(a) of the Order provides that the Secretary shall terminate or
suspend the operation of any or all of the provisions of the Order,
whenever the Secretary finds that such provisions do not tend to
effectuate the declared policy of the Act.
The Committee meets regularly to consider recommendations for
modification, suspension, or termination of the Order, and such
meetings are open to the public where interested persons may express
their views at these meetings. AMS reviews Committee recommendations,
including information provided by the Committee and from other
available sources, and determines whether such recommendations would
tend to effectuate the declared policy of the Act.
On May 27, 2005, following a recommendation from the Committee, AMS
indefinitely suspended handling and reporting requirements under the
Order, extended the temporary suspension of outgoing inspection and
volume control regulations, and extended the temporary suspension of
the Prune Import Regulation (70 FR 30610). Since 2005, the Committee
has continued to perform the administrative duties prescribed under the
Order, including the collection of assessments, conducting Committee
nominations, and assessing whether to recommend a marketing policy,
which may include handling regulations.
On March 22, 2023, the Committee held a public meeting to consider
the future of regulation under the Order. The Committee determined that
the 2005 suspension of handling and volume regulations did not
adversely impact the marketing of California prunes and that there is
no value in funding the administrative duties prescribed under the
Order when the handling regulations and reserve control provisions are
not in effect. The Committee discussed terminating the Order but
rejected the idea because its members believe the sector of industry is
not yet ready to terminate, given the length of time and expense that
would be required to establish a new marketing order should regulation
again be deemed necessary in the future. In addition, several Committee
members expressed the opinion that future market conditions may warrant
regulation, particularly volume control, and urged the Committee not to
terminate the Order at this time. After much deliberation, the
Committee voted unanimously to indefinitely suspend the Order with the
expectation that the Order would either remain indefinitely suspended
or AMS would at a future time act to terminate the Order if no
recommendation for reinstatement is submitted by industry. In the event
of no such recommendation for reinstatement, the Committee would take
the necessary steps to ensure an orderly and complete termination of
the Order.
The Committee recommended to AMS the Order's suspension for an
indefinite period to allow for the reinstatement of regulation to
remain an option and to provide industry time to assess the market
environment and other external factors affecting California prunes.
Under the proposed suspension, handlers would no longer be required to
pay assessments. The Committee believes this cost savings would benefit
both small and large handlers, and that producers would also be
relieved of some costs because such payments are often passed onto them
by handlers.
After reviewing the Committee's recommendation and supporting
materials, AMS included a sunset provision that if no recommendation is
received by July 31, 2030, AMS would then issue a rule proposing
termination of the Order. The Committee agreed that a suspension period
of seven years is adequate time for the California prune industry to
assess future market conditions and reestablishment of the Order, if
warranted. This proposed rule would lift the portions of the Order
currently under suspension and then suspend the entire Order for seven
years, beginning with the 2023-2024 crop year and ending with the 2029-
2030 crop year, which ends on July 31, 2030. If industry does not
recommend reinstating the Order by the end of the proposed suspension
period, AMS will issue a proposal to terminate the Order.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of
this proposed 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
businesses 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 approximately 600 producers of dried prunes in the
production area and 27 handlers subject to regulation under the Order.
Small agricultural producers are defined by the Small Business
Administration (SBA) as those having annual receipts less than
$3,500,000, and small agricultural service firms are defined as those
whose annual receipts are less than $34,000,000 (13 CFR 121.201).
According to the National Agricultural Statistics Service (NASS),
the average producer price for California dried prunes for the 2021
crop was $2,000 per ton. NASS further reported 2021 crop year
production for California dried prunes was 74,000 tons. The estimated
total 2021-22 crop year value of California dried prunes is
$148,000,000 (74,000 tons times $2,000 per ton equals $148,000,000).
Dividing the estimated total crop value by the estimated number of
producers (600) yields an estimated average receipt per producer of
$246,667, which is considerably lower than the $3,500,000 SBA small
agricultural producer threshold.
In addition, according to USDA Market News data, the reported
average terminal market price for 2022 for California dried prunes was
$39.04 per carton. Dividing the average carton price by the 28-pound
carton size yields an estimated price per pound of $1.39. ($39.04
average price divided by 28 pounds). Multiplying $1.39 per pound by
2,000 pounds yields $2,780 per ton, which, when multiplied by total
estimated 2021 production of 74,000 tons, yields estimated total
handler receipts of $205,720,000. Dividing this figure by the 27
regulated handlers yields estimated average annual handler receipts of
$7,619,259, well below the $34 million SBA threshold for small
agricultural service firms. Therefore, using the above data, the
majority of producers and handlers of California dried prunes may be
classified as small entities.
This proposed rule would suspend all provisions of the Order
starting with the 2023-2023 crop year, through the 2029-2030 crop year.
On March 22, 2023, the Committee voted unanimously to indefinitely
suspend the Order after determining that the 2005 suspension of
handling regulations, volume control and reporting requirements did not
negatively impact the marketing of California prunes and that the costs
to continue the Order outweighs its benefit to industry. The Committee
believes that such suspension would provide a cost savings to large and
small handlers and producers.
After reviewing the Committee's recommendation and other supporting
material, AMS included a sunset provision that if no recommendation for
reinstatement is received during the proposed suspension period, AMS
[[Page 70610]]
would then proceed to terminate the Order.
This action would suspend the Federal marketing order regulating
dried prunes produced in California though July 31, 2030. Authority for
this action is provided in section 993.90(a) of the Order.
Committee meetings are widely publicized throughout the production
area. The California dried prune industry and all interested persons
are invited to attend the meetings and participate in Committee
deliberations on all issues. Similarly, the March 22, 2023, meeting was
a public meeting and all entities, both large and small, were able to
express views on this issue.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the Order's information collection requirements have been
previously approved by OMB and assigned OMB No. 0581-0178, Vegetable
Crops. OMB's three-year approval of the forms in the Vegetable Crops
package expire March 31, 2024. AMS' submission of the renewal package
prior to its expiration will retain prune forms but will drawdown the
information collection burden to zero during the time when respondents
will not be completing and submitting the forms during the seven-year
suspension. Should any changes become necessary, they would be
submitted to OMB for approval.
This proposed rule would not impose any additional reporting or
recordkeeping requirements on either small or large California dried
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.
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.
AMS has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this proposed rule.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
<a href="https://www.ams.usda.gov/rules-regulations/moa/small-businesses">https://www.ams.usda.gov/rules-regulations/moa/small-businesses</a>. Any
questions about the compliance guide should be sent to Richard Lower at
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
A 30-day comment period is provided to allow interested persons to
respond to this proposed rule. All written comments timely received
will be considered before a final determination is made on this rule.
List of Subjects in 7 CFR Part 993
Marketing agreements, Plum, Prunes, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, the Agricultural
Marketing Service proposes to amend 7 CFR part 993 as follows:
PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA
0
1. The authority citation for 7 CFR part 993 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Part 993, lift the suspension of May 27, 2005, on Sec. Sec.
993.21d, 993.41, 993.48, 993.49, 993.50, 993.51, 993.52, 993.53,
993.54, 993.55, 993.56, 993.57, 993.58, 993.59, 993.62, 993.65, 993.72,
993.73, 993.74, 993.75, 993.97, 993.104, 993.105, 993.106, 993.107,
993.108, 993.149, 993.150, 993.156, 993.157, 993.158, 993.159, 993.162,
993.165, 993.172, 993.173, 993.174, 993.400, 993.409, 993.501, 993.503,
993.504, 993.505, 993.506, 993.515, 993.516, 993.517, 993.518, 993.601,
and 993.602.
PART 993--[STAYED]
0
3. Stay 7 CFR part 993 until July 31, 2030.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-22333 Filed 10-11-23; 8:45 am]
BILLING CODE P
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