Grapes Grown in a Designated Area of Southeastern California; Proposed Amendments to Marketing Order and Referendum Order, 60570-60573 [2015-25447]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 80, Number 194 (Wednesday, October 7, 2015)]
[Proposed Rules]
[Pages 60570-60573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25447]


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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. 80, No. 194 / Wednesday, October 7, 2015 / 
Proposed Rules

[[Page 60570]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Doc. No. AMS-FV-14-0049; FV14-925-3]


Grapes Grown in a Designated Area of Southeastern California; 
Proposed Amendments to Marketing Order and Referendum Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and referendum order.

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SUMMARY: This rulemaking proposes three amendments to Marketing Order 
No. 925 (order), which regulates the handling of table grapes grown in 
a designated area of southeastern California. Two amendments are based 
on proposals made by the California Desert Grape Administrative 
Committee (Committee), which is responsible for the local 
administration of the order. These two amendments would increase term 
lengths for Committee members and alternates from one to four fiscal 
periods and would allow new members and alternates to agree to accept 
their nominations prior to selection. The amendments are intended to 
increase the Committee's effectiveness and bolster industry 
participation in Committee activities.
    In addition to the Committee's two amendments, the Agricultural 
Marketing Service (AMS) would amend the order to add authority for 
periodic continuance referenda which would allow producers to indicate 
whether or not there is continuing support for the order.

DATES: The referendum will be conducted from January 21, 2016 through 
February 4, 2016. The representative period for the purpose of the 
referendum is January 1, 2015 through December 31, 2015.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, or Michelle P. Sharrow, Rulemaking Branch Chief, Marketing 
Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 
1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: 
Geronimo.Quinones@ams.usda.gov or Michelle.Sharrow@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Order No. 925, as amended (7 CFR part 925), regulating the handling of 
table grapes grown in a designated area of southeastern California, 
hereinafter referred to as the ``order.'' The order is effective under 
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 
601-674), hereinafter referred to as the ``Act.'' Section 608c(17) of 
the Act and the applicable rules of practice and procedure governing 
the formulation of marketing agreements and orders (7 CFR part 900) 
authorize amendments of the order through this informal rulemaking 
action.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866, 13563, and 13175.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This proposed rule is not intended to have retroactive 
effect. This rulemaking shall not be deemed to preclude, preempt, or 
supersede any State program covering table grapes grown in southeastern 
California.
    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 no later than 20 days after the date of 
entry of the ruling.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) amended section 18c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of 
section 18c(17) of the Act and additional supplemental rules of 
practice authorize the use of informal rulemaking (5 U.S.C. 553) to 
amend Federal fruit, vegetable, and nut marketing agreements and 
orders. USDA may use informal rulemaking to amend marketing orders 
based on the nature and complexity of the proposed amendments, the 
potential regulatory and economic impacts on affected entities, and any 
other relevant matters.
    AMS has considered these factors and has determined that the 
amendment proposals are not unduly complex and the nature of the 
proposed amendments is appropriate for utilizing the informal 
rulemaking process to amend the order. A discussion of the potential 
regulatory and economic impacts on affected entities is discussed later 
in the ``Initial Regulatory Flexibility Analysis'' section of this 
proposed rule.
    Two amendments were unanimously recommended by the Committee 
following deliberations at a public meeting held on November 5, 2013. 
In addition to these amendments, AMS would amend the order to add 
authority to provide for periodic continuance referenda.
    A proposed rule soliciting comments on the proposed amendments was 
issued on June 1, 2015, and published in the Federal Register on June 
5, 2015 (80 FR 32043). No comments were received. AMS will conduct a 
producer referendum to determine support for the proposed amendments. 
If appropriate, a final rule will then be issued to effectuate the 
amendments favored by producers in the referendum.
    The Committee's proposed amendments would amend the marketing order 
by: (1) Increasing the

[[Page 60571]]

length of the term of office for Committee members and alternates from 
one to four fiscal periods, and (2) allowing new members and alternates 
to agree to accept their nominations prior to selection.
    In addition to these proposed amendments, AMS proposes to add 
authority to provide for periodic continuance referenda. AMS has 
determined that continuance referenda are an effective means to allow 
the industry to indicate whether or not there exists continuing support 
for the marketing order. AMS would also consider all other relevant 
information concerning the operation of the order and the relative 
benefits and disadvantages to the industry.

Proposal Number 1--Term of Office

    This proposal would amend Sec.  925.21 by increasing the length of 
the term of office for Committee members and alternates from one to 
four fiscal periods. The change would provide more time for new members 
and alternates to learn the details of the Committee's operations and 
business during their tenure. In addition, longer terms would eliminate 
the annual turnover of the Committee and the perennial need for new 
members and alternates. If this amendment is adopted, members and 
alternate members would be selected for a four-year term of office 
beginning with the first term after the amendments become effective.
    For the reasons stated above, it is proposed that Sec.  925.21 be 
modified to increase the length of the term of office for Committee 
members and alternates from one to four fiscal periods.

Proposal Number 2--Qualification and Acceptance

    This proposal would modify Sec.  925.25 to allow new members and 
alternates to agree to accept their nominations prior to selection for 
the Committee by the Secretary.
    Committee members and alternates are nominated by their peers to 
serve and are then selected by the Secretary. After the selections are 
made, Committee members and alternates are required to formally accept 
the appointment by signing and submitting an acceptance letter 
indicating they are willing to serve. The Committee believes this final 
step in the selection process is redundant and not efficient. The order 
would be revised to specify that before a person is selected as a 
member or alternate member of the Committee, that person must complete 
a questionnaire outlining their qualifications. This would eliminate 
the requirement to complete and submit a separate acceptance letter 
after being nominated. Because the nominee qualifications questionnaire 
already includes a statement indicating the person is willing to serve 
on the Committee, if selected by the Secretary, AMS modified the 
proposed regulatory text originally submitted by the Committee.
    For the reasons stated above, it is proposed that Sec.  925.25 be 
revised to remove the requirement to file a written acceptance with the 
Secretary after being notified of selection.

Proposal Number 3--Continuance Referenda

    AMS would amend Sec.  925.63, Termination, to require that 
continuance referenda be conducted every six years to gauge industry 
support for the order. Currently, there is no provision in the 
marketing order that requires periodic continuance referenda. 
Continuance referenda provide an industry with a means to measure 
grower support for the marketing order program. Since marketing orders 
benefit growers, it follows that they should be afforded the 
opportunity to express whether they support the programs on a periodic 
basis. Under this proposal, the Department would consider termination 
of the order if less than two-thirds of the producers voting in the 
referendum or producers of less than two-thirds of the volume of table 
grapes represented in the referendum favor continuance. In evaluating 
the merits of continuance versus termination, USDA would not only 
consider the results of the referendum. The Department would also 
consider all other relevant information concerning the operation of the 
order and its relative benefits and disadvantages in order to determine 
whether continued operation of the order would tend to effectuate the 
declared policy of the Act.
    For the reasons stated above, it is proposed that Sec.  925.63--
Termination, be amended by redesignating paragraph (c) as paragraph (d) 
and adding a new paragraph (c) to provide that a continuance referendum 
shall be conducted six years after the amendment becomes effective and 
every six years thereafter. The new paragraph (c) in this proposed rule 
and referendum order has been corrected to require a continuance 
referendum six years after the new paragraph becomes effective, not six 
years after part 925 becomes effective. The new paragraph (c) of Sec.  
925.63 would further specify that the Department may terminate the 
order if continuance is not favored by two-thirds of the growers 
participating in the referendum, or voters representing two-thirds of 
the production volume represented in the referendum.

Final Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the 
economic impact of this action 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 
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 rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf.
    Based on Committee data, there are approximately 15 handlers of 
southeastern California table grapes who are subject to regulation 
under the marketing order and approximately 41 grape producers in the 
production area. Small agricultural service firms are defined by the 
Small Business Administration (SBA) as those having annual receipts of 
less than $7,000,000, and small agricultural producers are defined as 
those whose annual receipts are less than $750,000 (13 CFR 121.201).
    Ten of the 15 handlers subject to regulation have annual grape 
sales of less than $7,000,000 according to USDA Market News Service and 
Committee data. Based on information from the Committee and USDA's 
Market News Service, it is estimated that at least 10 of the 41 
producers have annual receipts of less than $750,000. Thus, it may be 
concluded that a majority of grape handlers regulated under the order 
and about 10 of the producers could be classified as small entities 
under SBA definitions.
    The amendments proposed by the Committee would provide authority to 
increase the term length for members and alternates from one to four 
fiscal periods under the Federal marketing order for California table 
grapes. They also would allow new members and alternates of the 
Committee to agree to accept their nominations before the selection 
process begins. An amendment proposed by AMS would provide for 
continuance referenda every six years.
    The Committee's proposed amendments were unanimously recommended at 
a public meeting on November 5, 2013.
    If these proposals are approved in referendum, there would be no 
direct

[[Page 60572]]

financial effects on producers or handlers. Eliminating the need to 
complete the election process every year would save considerable 
amounts of time and reduce expenses for the industry and the Committee. 
In addition, eliminating the acceptance letter improves the efficiency 
of the nomination and appointment process.
    The Committee believes these changes represent the needs of the 
Committee and industry. No economic impact is expected if the 
amendments are approved because they would not establish any regulatory 
requirements on handlers, nor do they contain any assessment or funding 
implications. There would be no change in financial costs, reporting, 
or recordkeeping requirements if either of these proposals is approved.
    AMS' proposal to add a provision for continuance referenda is 
expected to afford producers the opportunity to indicate continuing 
support for the order and its programs. Support for the program is 
expected to benefit all producers and handlers by ensuring that the 
program continues to meet the industry's needs.
    Alternatives to these proposals, including making no changes at 
this time, were considered. However, the Committee believes it would be 
beneficial to streamline the nomination and selection process to reduce 
the costs required for completing the process annually and to provide 
new members and alternates with more time to learn the details of the 
Committee's operations and business during their tenure.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the termination of the Letter of Acceptance was previously 
submitted to and approved by the Office of Management and Budget (OMB). 
As a result, the current number of hours associated with OMB No. 0581-
0189, Generic Fruit Crops, would remain the same: 7,786.71 hours.
    As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, USDA 
has not identified any relevant Federal rules that duplicate, overlap, 
or conflict with this proposed rule.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    The Committee's meeting was widely publicized throughout the 
California table grape production area. All interested persons were 
invited to attend the meeting and encouraged to participate in 
Committee deliberations on all issues. Like all Committee meetings, the 
November 5, 2013, meeting was public, and all entities, both large and 
small, were encouraged to express their views on these proposals.
    A proposed rule concerning this action was published in the Federal 
Register on June 5, 2015 (80 FR 32043). Copies of the rule were mailed 
or sent via facsimile to all Committee members and table grape 
handlers. Finally, the proposed rule was made available through the 
internet by USDA and the Office of the Federal Register. A 60-day 
comment period ending August 4, 2015, was provided to allow interested 
persons to respond to the proposal. No comments were received. 
Accordingly, no changes have been made to the proposed amendments.
    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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Jeffrey Smutny at his 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.

Findings and Conclusions

    The findings and conclusions and general findings and 
determinations included in the proposed rule set forth in the June 5, 
2015, issue of the Federal Register are hereby approved and adopted.

Marketing Order

    Annexed hereto and made a part hereof is the document entitled 
``Order Amending the Order Regulating the Handling of Table Grapes 
Grown in a Designated Area of Southeastern California.'' This document 
has been decided upon as the detailed and appropriate means of 
effectuating the foregoing findings and conclusions. It is hereby 
ordered, that this entire proposed rule be published in the Federal 
Register.

Referendum Order

    It is hereby directed that a referendum be conducted in accordance 
with the procedure for the conduct of referenda (7 CFR part 900.400-
407) to determine whether the annexed order amending the order 
regulating the handling of table grapes grown in a designated area of 
southeastern California is approved by growers, as defined under the 
terms of the order, who during the representative period were engaged 
in the production of table grapes in the production area. The 
representative period for the conduct of such referendum is hereby 
determined to be January 1, 2015 through December 31, 2015.
    The agents of the Secretary to conduct such referendum are 
designated to be Rose Aguayo and Kathie Notoro, California Marketing 
Field Office, Marketing Order and Agreement Division, Fruit and 
Vegetable Program, AMS, USDA; Telephone: (559) 487-5901, or Email: 
Rose.Aguayo@ams.usda.gov or Kathie.Notoro@ams.usda.gov, respectively.

Order Amending the Order Regulating the Handling of Table Grapes Grown 
in a Designated Area of Southeastern California \1\
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    \1\ This order shall not become effective unless and until the 
requirements of Sec.  900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
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Findings and Determinations

    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the marketing order; and all said previous 
findings and determinations are hereby ratified and affirmed, except 
insofar as such findings and determinations may be in conflict with the 
findings and determinations set forth herein.
    1. The marketing order, as amended, and as hereby proposed to be 
further amended, and all of the terms and conditions thereof, would 
tend to effectuate the declared policy of the Act;
    2. The marketing order, as amended, and as hereby proposed to be 
further amended, regulates the handling of table grapes grown in a 
designated area of Southeastern California in the same manner as, and 
is applicable only to, persons in the respective classes of commercial 
and industrial activity specified in the marketing order;
    3. The marketing order, as amended, and as hereby proposed to be 
further amended, is limited in application to the smallest regional 
production area which is practicable, consistent with carrying out the 
declared policy of the Act, and the issuance of several orders 
applicable to subdivisions of the production area would not effectively 
carry out the declared policy of the Act;

[[Page 60573]]

    4. The marketing order, as amended, and as hereby proposed to be 
further amended, prescribes, insofar as practicable, such different 
terms applicable to different parts of the production area as are 
necessary to give due recognition to the differences in the production 
and marketing of table grapes produced in the production area; and
    5. All handling of table grapes produced in the production area as 
defined in the marketing order is in the current of interstate or 
foreign commerce or directly burdens, obstructs, or affects such 
commerce.

Order Relative to Handling

    It is therefore ordered, that on and after the effective date 
hereof, all handling of table grapes grown in a designated area of 
southeastern California shall be in conformity to, and in compliance 
with, the terms and conditions of the said order as hereby proposed to 
be amended as follows:
    The provisions of the proposed marketing order amending the order 
contained in the proposed rule issued by the Administrator on June 1, 
2015, and published in the Federal Register (80 FR 32043) on June 5, 
2015, will be and are the terms and provisions of this order amending 
the order and are set forth in full herein.

List of Subjects in 7 CFR Part 925

    Grapes, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 925 is 
proposed to be amended as follows:

PART 925--GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN 
CALIFORNIA

0
1. The authority citation for 7 CFR part 925 continues to read as 
follows:

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

0
2. Revise the first sentence of 925.21 to read as follows:


Sec.  925.21  Term of office.

    The term of office of the members and alternates shall be four 
fiscal periods. * * *
0
3. Revise 925.25 to read as follows:


Sec.  925.25  Qualification and acceptance.

    Any person selected as a member or alternate member of the 
Committee shall, prior to such selection, qualify by filing a 
qualifications questionnaire advising the Secretary that he or she 
agrees to serve in the position for which nominated.
0
4. Amend 925.63 by redesignating paragraph (c) as (d) and adding a new 
paragraph (c) to read as follows:


Sec.  925.63  Termination.

* * * * *
    (c) Within six years of the effective date of this paragraph the 
Secretary shall conduct a referendum to ascertain whether continuance 
of this part is favored by producers. Subsequent referenda to ascertain 
continuance shall be conducted every six years thereafter. The 
Secretary may terminate the provisions of this part at the end of any 
fiscal period in which the Secretary has found that continuance of this 
part is not favored by a two thirds majority of voting producers, or a 
two thirds majority of volume represented thereby, who, during a 
representative period determined by the Secretary, have been engaged in 
the production for market of table grapes in the production area. Such 
termination shall be announced on or before the end of the production 
year.
* * * * *

    Dated: October 1, 2015.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-25447 Filed 10-6-15; 8:45 am]
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