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, 30610-30613 [05-10469]
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30610
Federal Register / Vol. 70, No. 102 / Friday, May 27, 2005 / Rules and Regulations
Flexibility Act (5 U.S.C. 601 et seq.),
and thus is exempt from the provisions
of that Act. Finally, this action is not a
rule as defined in 5 U.S.C. 804, and thus
does not require review by Congress.
DEPARTMENT OF AGRICULTURE
List of Subjects in 7 CFR Part 2
[Docket No. FV05–993–2 IFR]
Authority delegations (Government
agencies).
I
PART 2—DELEGATIONS OF
AUTHORITY BY THE SECRETARY OF
AGRICULTURE AND GENERAL
OFFICERS OF THE DEPARTMENT
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:
Accordingly, 7 CFR Part 2 is amended
as follows:
1. The authority citation for part 2
continues to read as follows:
I
Authority: 7 U.S.C. 6912(a)(1), 5 U.S.C.
301; Reorganization Plan No. 2 of 1953, 3
CFR, 1949–1953 Comp., p. 1024.
Subpart D—Delegation of Authority to
Other General Officers and Agency
Heads
2. Amend § 2.31 to revise paragraph (a)
to read as follows:
I
§ 2.31
General Counsel.
*
*
*
*
*
(a) Consider, ascertain, adjust,
determine, compromise, and settle
claims pursuant to the Federal Tort
Claims Act, as amended (28 U.S.C.
2671–2680), and the regulations of the
Attorney General contained in 28 CFR
part 14; delegate the authority to
consider, ascertain, adjust, determine,
compromise, and settle, pursuant to the
Federal Tort Claims Act as amended (28
U.S.C. 2671–2680) and the regulations
of the Attorney General contained in 28
CFR part 14, claims less than $2500 that
allege the negligence or wrongful act of
an employee of a USDA agency; and
consider, ascertain, adjust, determine
compromise, and settle claims pursuant
to section 920 of the Federal Agriculture
Improvement and Reform Act of 1996,
Public Law 104–127 (7 U.S.C. 2262a).
*
*
*
*
*
Dated: April 11, 2005.
Mike Johanns,
Secretary of Agriculture.
[FR Doc. 05–10612 Filed 5–26–05; 8:45 am]
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Agricultural Marketing Service
7 CFR Parts 993 and 999
Agricultural Marketing Service,
USDA.
ACTION: Interim final rule with request
for comments.
SUMMARY: This rule suspends
indefinitely all remaining handling and
most reporting requirements under
Marketing Order No. 993, beginning
August 1, 2005. The marketing order
regulates the handling of dried prunes
produced in California and is
administered locally by the Prune
Marketing Committee (committee). This
rule 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.
DATES: Effective August 1, 2005;
comments received by July 26, 2005 will
be considered prior to issuance of 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 E-mail:
moab.docketclerk@usda.gov; or Internet:
https://www.regulations.gov. All
comments should reference the docket
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: https://
www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT:
Terry Vawter, Marketing Specialist,
California Marketing Field Office,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 2202 Monterey Street,
Suite 102B, Fresno, California 93721;
Telephone: (559) 487–5901, Fax: (559)
487–5906; or Kathy Finn, Formal
Rulemaking Team Leader, Marketing
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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
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.
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.’’
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. This rule is not intended to
have 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.
SUPPLEMENTARY INFORMATION:
Summary
This rule suspends handling and
reporting requirements under the
marketing order and the prune import
regulation, beginning with the 2005–
2006 crop year, and continuing
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indefinitely. These provisions could
either be reactivated or terminated. The
2005–2006 crop year begins on August
1, 2005. This action also extends 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 operation of any or all of
the provisions of this 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 that
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 prorata 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 the CDPB.
The committee would enter into an
agreement with the 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
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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 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 the committee to
rescind the December 8, 2004,
recommendation. The Executive
Committee then recommended that 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.
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Handling Requirements
Under the order, §§ 993.48 through
993.59, and § 993.62 authorize
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.
Currently, the provisions for outgoing
inspection 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 §§ 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
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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).
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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.
Initial 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 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 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
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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
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 interim 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,
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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
interim 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 are invited to submit
information on the regulatory and
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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: https://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 interim final rule and
concurs with its issuance.
This rule invites comments on
changes to the handling and reporting
requirements prescribed under the
marketing order and the import
regulation. Any comments timely
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
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register
because: (1) The committee
unanimously recommended these
changes at a public meeting and
interested parties had an opportunity to
provide input; (2) these changes relax
requirements on handlers and
importers; and (3) this rule provides a
60-day comment period and any
comments timely received will be
considered prior to finalization of this
rule.
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
recordingkeeping requirements,
Walnuts.
I For the reasons set forth in the
preamble, 7 CFR parts 993 and 999 are
amended as follows:
I 1. The authority citation for 7 CFR
parts 993 and 999 continues to read as
follows:
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Authority: 7 U.S.C. 601–674.
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30613
PART 993—DRIED PRUNES
PRODUCED IN CALIFORNIA
2. In Part 993, §§ 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
are suspended indefinitely.
I 3. In § 993.33, the words ‘‘salable and
reserve percentages, and on any matters
pertaining to the control or disposition of
reserve prunes or to prune plum
diversion pursuant to § 993.62’’ are
suspended indefinitely.
I 4. Paragraph (i) of § 993.36 is
suspended indefinitely.
I
PART 999—SPECIALTY CROPS;
IMPORT REGULATIONS
5. Section 999.200 is suspended
indefinitely.
I
Dated: May 20, 2005.
Kenneth C. Clayton,
Acting Administrator, Agriculture Marketing
Service.
[FR Doc. 05–10469 Filed 5–26–05; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2005–21273; Directorate
Identifier 2005–NE–15–AD; Amendment 39–
14103; AD 2005–11–01]
RIN 2120–AA64
Airworthiness Directives; Turbomeca
S.A. Arrius 1A Turboshaft Engines
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; request for
comments.
AGENCY:
SUMMARY: The FAA is adopting a new
airworthiness directive (AD) for
Turbomeca S.A. Arrius 1A turboshaft
engines. This AD requires initial and
repetitive testing of the Free Turbine
Overspeed Protection System. This AD
results from an investigation into the
Digital Electronic Control Unit (DECU)
that revealed a malfunction of the Free
Turbine Overspeed Protection System.
This malfunction can exist despite the
DECU passing all functional tests
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]]>Agencies
[Federal Register Volume 70, Number 102 (Friday, May 27, 2005)]
[Rules and Regulations]
[Pages 30610-30613]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10469]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 993 and 999
[Docket No. FV05-993-2 IFR]
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: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule suspends indefinitely all remaining handling and
most reporting requirements under Marketing Order No. 993, beginning
August 1, 2005. The marketing order regulates the handling of dried
prunes produced in California and is administered locally by the Prune
Marketing Committee (committee). This rule 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.
DATES: Effective August 1, 2005; comments received by July 26, 2005
will be considered prior to issuance of 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 E-mail: moab.docketclerk@usda.gov;
or Internet: https://www.regulations.gov. All comments should reference
the docket 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: https://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist,
California Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street,
Suite 102B, Fresno, California 93721; 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
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.''
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. This rule is not intended to have 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 suspends handling and reporting requirements under the
marketing order and the prune import regulation, beginning with the
2005-2006 crop year, and continuing
[[Page 30611]]
indefinitely. These provisions could either be reactivated or
terminated. The 2005-2006 crop year begins on August 1, 2005. This
action also extends 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 operation of any or
all of the provisions of this 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 that 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 prorata 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 the CDPB. The committee would
enter into an agreement with the 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 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 the committee to rescind the December 8, 2004,
recommendation. The Executive Committee then recommended that 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. 993.62
authorize 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.
Currently, the provisions for outgoing inspection 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
[[Page 30612]]
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.
Initial 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 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 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 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 interim 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,
[[Page 30613]]
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 interim 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 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/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 interim final rule
and concurs with its issuance.
This rule invites comments on changes to the handling and reporting
requirements prescribed under the marketing order and the import
regulation. Any comments timely 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 exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) The committee unanimously recommended these changes at a
public meeting and interested parties had an opportunity to provide
input; (2) these changes relax requirements on handlers and importers;
and (3) this rule provides a 60-day comment period and any comments
timely received will be considered prior to finalization of this rule.
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 recordingkeeping requirements, Walnuts.
0
For the reasons set forth in the preamble, 7 CFR parts 993 and 999 are
amended as follows:
0
1. The authority citation for 7 CFR parts 993 and 999 continues to read
as follows:
Authority: 7 U.S.C. 601-674.
PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA
0
2. In Part 993, 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 are suspended indefinitely.
0
3. In Sec. 993.33, the words ``salable and reserve percentages, and on
any matters pertaining to the control or disposition of reserve prunes
or to prune plum diversion pursuant to Sec. 993.62'' are suspended
indefinitely.
0
4. Paragraph (i) of Sec. 993.36 is suspended indefinitely.
PART 999--SPECIALTY CROPS; IMPORT REGULATIONS
0
5. Section 999.200 is suspended indefinitely.
Dated: May 20, 2005.
Kenneth C. Clayton,
Acting Administrator, Agriculture Marketing Service.
[FR Doc. 05-10469 Filed 5-26-05; 8:45 am]
BILLING CODE 3410-02-P
