Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida; Order Amending Marketing Order No. 905, 46303-46306 [E9-21656]
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46303
Rules and Regulations
Federal Register
Vol. 74, No. 173
Wednesday, September 9, 2009
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 905
Oranges, Grapefruit, Tangerines, and
Tangelos Grown in Florida; Order
Amending Marketing Order No. 905
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AGENCY: Agricultural Marketing Service,
USDA.
ACTION: Final rule.
SUMMARY: This final rule amends the
marketing order for oranges, grapefruit,
tangerines, and tangelos grown in
Florida. The amendments were
proposed by the Citrus Administrative
Committee (committee), which is
responsible for local administration of
the order. The amendments will modify
committee representation by
cooperative entities; allow substitute
alternates to temporarily represent
absent members at committee meetings;
authorize the committee to conduct
meetings by telephone or other means of
communication; and authorize the
committee to conduct research and
promotion programs, including paid
advertising, for fresh Florida citrus. The
amendments are intended to improve
the operation and administration of the
order and provide the industry with
additional tools for the marketing of
fresh citrus.
DATES: This rule is effective October 9,
2009.
FOR FURTHER INFORMATION CONTACT:
Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1220
SW. Third Avenue, Room 385, Portland,
OR 97204; Telephone: (503) 326–2724,
Fax: (503) 326–7440, or E-mail:
Melissa.Schmaedick@ams.usda.gov; or
Laurel May, Marketing Order
Administration Branch, Fruit and
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Prior
documents in this proceeding: Notice of
Hearing issued on January 24, 2008, and
published in the January 29, 2008, issue
of the Federal Register (73 FR 5130); a
Recommended Decision issued on
December 19, 2008, and published in
the December 24, 2008, issue of the
Federal Register (73 FR 79028); and a
Secretary’s Decision and Referendum
Order issued on April 6, 2009, and
published in the April 13, 2009, issue of
the Federal Register (74 FR 16798).
This action is governed by the
provisions of sections 556 and 557 of
Title 5 of the United States Code and is
therefore excluded from the
requirements of Executive Order 12866.
SUPPLEMENTARY INFORMATION:
[Doc. No. AO–85–A10; AMS–FV–07–0132;
FV08–905–1]
VerDate Nov<24>2008
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:
Laurel.May@ams.usda.gov.
Small businesses may request
information on this proceeding 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@ams.usda.gov.
Preliminary Statement
This final rule was formulated on the
record of a public hearing held on
February 12, 2008, in Winter Haven,
Florida. Notice of this hearing was
issued on January 24, 2008, and
published in the January 29, 2008, issue
of the Federal Register (73 FR 5130).
The hearing was held to consider the
proposed amendment of Marketing
Order No. 905, hereinafter referred to as
the ‘‘order’’.
The hearing was held pursuant to the
provisions of the Agricultural Marketing
Agreement Act of 1937, as amended (7
U.S.C. 601–674), hereinafter referred to
as the ‘‘Act,’’ and the applicable rules of
practice and procedure governing the
formulation of marketing agreements
and marketing orders (7 CFR part 900).
The Notice of Hearing contained four
amendment proposals submitted by
committee. Upon the basis of evidence
introduced at the hearing and the record
thereof, the Administrator of AMS on
December 19, 2008, filed with the
Hearing Clerk, U.S. Department of
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Agriculture, a Recommended Decision
and Opportunity to File Written
Exceptions thereto by January 23, 2009.
No exceptions were filed.
A Secretary’s Decision and
Referendum Order was issued on April
6, 2009, directing that a referendum be
conducted during the period May 4
through May 18, 2009, among growers
of fresh oranges, grapefruit, tangerines,
and tangelos to determine whether they
favored the proposed amendments to
the order. To become effective, the
amendments had to be approved by at
least two-thirds of those producers
voting or by voters representing at least
two-thirds of the volume of citrus
represented by voters in the referendum.
Three of the proposed amendments
were favored by 95 percent of the voters,
representing 99 percent of the volume.
One amendment was favored by 88
percent of voters, who represented 49
percent of the volume.
The amendments approved by voters
and included in this order will:
1. Modify committee representation
by cooperative committees;
2. Allow substitute alternates to
temporarily represent absent members
at committee meetings;
3. Authorize the committee to
conduct meetings by telephone or other
means of communication; and
4. Add authority for research and
promotion programs, including paid
advertising, for fresh Florida citrus.
The Agricultural Marketing Service
(AMS) also proposed to make such
changes to the order as might be
necessary to ensure that all of the
order’s provisions conform to the
effectuated amendments. AMS proposed
replacing the word ‘‘he’’ in the second
sentence of § 905.22(a)(2) with the
words ‘‘he or she’’ to conform to other
proposed changes to § 905.22.
An amended marketing agreement
was subsequently provided to all fresh
orange, grapefruit, tangerine, and
tangelo handlers in the production area
for their approval. The marketing
agreement was not approved by
handlers representing at least 50 percent
of the volume of fresh oranges,
grapefruit, tangerines, and tangelos
handled by all handlers during the
representative period of August 1, 2007
through July 31, 2008.
Small Business Considerations
Pursuant to the requirements set forth
in the Regulatory Flexibility Act (RFA)
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(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
business subject to such actions so that
small businesses will not be unduly or
disproportionately burdened. Marketing
orders and amendments thereto are
unique in that they are normally
brought about through group action of
essentially small entities for their own
benefit.
Small agricultural service firms,
which include handlers regulated under
the order, have been defined by the
Small Business Administration (SBA)
(13 CFR 121.201) as those having annual
receipts of less than $7,000,000. Small
agricultural producers have been
defined as those with annual receipts of
less than $750,000.
There are approximately 48 handlers
of fresh citrus subject to regulation
under the order and approximately
7,700 producers of fresh citrus in the
regulated area. Information provided at
the hearing indicates that over 90
percent of the handlers would be
considered small agricultural service
firms. Hearing testimony also suggests
that the majority of producers would
also be considered small entities
according to the SBA’s definition.
The order regulates the handling of
fresh citrus grown in the state of
Florida. Total bearing citrus acreage has
declined from a peak of approximately
800,000 acres in 1996–97 to about
550,000 acres in 2006–07, largely due to
hurricane damage and the removal of
diseased citrus trees. Approximately
7.236 million tons of citrus were
produced in Florida during the 2006–07
season—a decline of approximately 6
million tons compared to the 1996–97
season. According to evidence provided
at the hearing, approximately 10 percent
of Florida citrus is used in the fresh
market, while the remainder is used in
the production of processed juice
products. Generally, 40 percent of
Florida’s fresh citrus is shipped to
export markets, including the Pacific
Rim countries, Europe, and Canada.
Under the order, outgoing quality
regulations are established for fresh
citrus shipments, and statistical
information is collected. Program
activities administered by the
committee are designed to support large
and small citrus producers and
handlers. The 18-member committee is
comprised of both producer and handler
representatives from the production
area, as well as a public member.
Committee meetings where regulatory
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recommendations and other decisions
are made are open to the public. All
members are able to participate in
committee deliberations, and each
committee member has an equal vote.
Others in attendance at meetings are
also allowed to express their views.
After discussions within the citrus
industry, the committee considered
developing its own research and
marketing promotion programs focusing
on fresh Florida citrus. An amendment
study subcommittee was formed to
explore this idea and other possible
order revisions. The subcommittee
developed a list of proposed
amendments to the order, which was
then presented to the committee and
shared with other industry
organizations. The proposed
amendments were also posted on the
committee’s Web site for review by the
Florida citrus industry at large.
The committee met to review and
discuss the subcommittee’s proposals at
its meeting on May 29, 2007. At that
time, the committee voted unanimously
to support the four proposed
amendments that were forwarded to
AMS.
In addition, the hearing to receive
evidence on the proposed changes was
open to the public and all interested
parties were invited and encouraged to
participate and provide their views.
The amendments are intended to
provide the committee and the industry
with additional flexibility in
administering the order and producing
and marketing fresh Florida citrus.
Record evidence indicates that the
amendments are intended to benefit all
producers and handlers under the order,
regardless of size. All producer and
handler witnesses supported the
amendments at the hearing. Some
witnesses commented on the
implications of implementing specific
marketing, research, and development
programs. In that context, witnesses
stated that they expected the benefits to
producers and handlers to outweigh any
potential costs.
The amendment reducing the
required number of cooperative
producer and cooperative handler seats
on the committee from three each to two
each will have no economic impact on
producers or handlers of any size. The
number of cooperative entities in the
industry has diminished considerably
since the order’s promulgation.
Reducing the number of cooperative
seats on the committee at this time will
reflect the current composition of the
industry. The reduction will help
ensure that the interests of all large and
small producers and handlers, whether
independent or members of
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cooperatives, are represented
appropriately during committee
deliberations.
Allowing substitute alternates to
represent absent members at committee
meetings, will have no adverse
economic impact on producers or
handlers of any size. Members who are
unable to attend committee meetings
will be allowed to designate available
alternates to represent them if their own
alternates are also unavailable in order
to achieve a quorum. If members are
unable to designate substitute alternates,
the committee can designate substitutes
at the meeting, if necessary to secure a
quorum. Substitute alternates will be
required to represent the same group
affiliation (producer or handler) as the
absent members and alternates. The
amendment will allow alternates not
otherwise representing absent members
to represent other members at
committee meetings in order to secure a
quorum. This will help ensure that
quorum requirements are met and that
committee business is addressed in a
timely manner.
Adding authority to conduct
committee meetings by telephone or
other means of communication is
expected to benefit producers and
handlers of all sizes by improving
committee efficiencies and encouraging
greater participation in industry
deliberations. It is not expected to result
in any significant increased costs to
producers or handlers. Using modern
communication technology will allow
the committee to respond more quickly
to urgent industry needs and will
provide greater access to meetings by
members and other industry
participants. Greater meeting flexibility
will make it easier for the committee to
hold additional meetings where there is
a need for lengthier discussion and
consensus building. These changes are
consistent with current practices in
other citrus industry settings.
Adding authority to establish research
and promotion programs will enable the
committee to address the specific needs
of the Florida fresh citrus industry by
recommending, conducting, and
funding research projects and
promotional programs, including paid
advertising, that focus on the
production, handling, and marketing of
fresh citrus.
Hearing witnesses testified that the
committee’s assessment rate could
increase to cover the costs of any newly
authorized research and promotion
projects, but that there may be an offset
by decreases in payments by the
industry to fund projects through other
entities. Any increased assessment costs
would be based on the volume of fresh
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citrus shipped by each handler and
would, therefore, be applied
proportionately to all handlers.
The benefits expected to accrue to
producers and handlers following
implementation of this amendment
should outweigh the costs. Witnesses
advocated the establishment of
production research programs that
would assist with the development of
new varieties and post-harvest handling
methods to improve the marketability of
fresh Florida citrus. Marketing programs
specific to fresh citrus are expected to
increase consumer demand and sales,
which should in turn increase returns to
producers and handlers. Improved
production and marketing strategies
developed under the authorized
programs are expected to outweigh any
additional costs to the Florida fresh
citrus industry. In addition, any
increased costs would be proportional
to a handler’s size and would not
unduly or disproportionately impact
small entities. Witness support for this
amendment was unanimous at the
hearing.
Interested persons were invited to
present evidence at the hearing on the
probable regulatory and informational
impact of the proposed amendments to
the order on small entities. The record
evidence is that implementation of the
amendments will have little or no
impact on producers and handlers.
USDA has not identified any relevant
Federal rules that duplicate, overlap or
conflict with this proposed rule. These
amendments are intended to improve
the operation and administration of the
order and to assist in the marketing of
fresh Florida citrus.
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Paperwork Reduction Act
Information collection requirements
for Part 905 are currently approved by
the Office of Management and Budget
(OMB), under OMB Number 0581–
0189—‘‘Generic OMB Fruit Crops.’’ No
changes in these requirements are
anticipated as a result of these
amendments. Should any such changes
become necessary, they will be
submitted to OMB for approval.
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 Government Paperwork Elimination
Act, which requires Government
agencies in general to provide the public
the option of submitting information or
transacting business electronically to
the maximum extent possible.
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16:13 Sep 08, 2009
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46305
(1) The marketing order, as amended,
and as hereby further amended, and all
of the terms and conditions thereof, will
tend to effectuate the declared policy of
the Act;
(2) The marketing order, as amended,
and as hereby further amended,
regulates the handling of oranges,
Civil Justice Reform
grapefruit, tangerines, and tangelos
The amendments to Marketing Order
grown in the production area in the
905 as stated herein have been reviewed same manner as, and is applicable only
under Executive Order 12988, Civil
to persons in the respective classes of
Justice Reform. They are not intended to commercial and industrial activity
have retroactive effect.
specified in the marketing order upon
The Act provides that administrative
which hearings have been held;
proceedings must be exhausted before
(3) The marketing order, as amended,
parties may file suit in court. Under
and as hereby further amended, is
section 608c(15)(A) of the Act, any
limited in application to the smallest
handler subject to an order may file
regional production area which is
with USDA a petition stating that the
practicable, consistent with carrying out
order, any provision of the order, or any the declared policy of the Act, and the
obligation imposed in connection with
issuance of several orders applicable to
the order is not in accordance with law
subdivision of the production area
and request a modification of the order
would not effectively carry out the
or to be exempted therefrom. A handler
declared policy of the Act;
is afforded the opportunity for a hearing
(4) The marketing order, as amended,
on the petition. After the hearing, USDA
and as hereby further amended,
would rule on the petition. The Act
prescribes, insofar as practicable, such
provides that the district court of the
different terms applicable to different
United States in any district in which
parts of the production area as are
the handler is an inhabitant, or has his
necessary to give due recognition to the
or her principal place of business, has
jurisdiction to review USDA’s ruling on differences in the production and
marketing of oranges, grapefruit,
the petition, provided an action is filed
tangerines, and tangelos grown in the
no later than 20 days after the date of
production area; and
the entry of the ruling.
(5) All handling of oranges, grapefruit,
Order Amending the Order Regulating
tangerines, and tangelos grown in the
the Handling of Oranges, Grapefruit,
production area is in the current of
Tangerines, and Tangelos Grown in
interstate or foreign commerce or
Florida
directly burdens, obstructs, or affects
such commerce.
Findings and Determinations
(b) Determinations. It is hereby
The findings and determinations set
determined that:
forth hereinafter are supplementary and
(1) Handlers (excluding cooperative
in addition to the findings and
associations of producers who are not
determinations previously made in
engaged in processing, distributing, or
connection with the issuance of the
shipping oranges, grapefruit, tangerines,
order; and all of said previous findings
and tangelos covered by the order as
and determinations are hereby ratified
hereby amended) who, during the
and affirmed, except insofar as such
period August 1, 2007 through July 31,
findings and determinations may be in
2008, handled 50 percent or more of the
conflict with the findings and
volume of such oranges, grapefruit,
determinations set forth herein.
(a) Findings and Determinations Upon tangerines, and tangelos covered by said
order, as hereby amended, have not
the Basis of the Hearing Record.
signed an amended marketing
Pursuant to the provisions of the
agreement; and,
Agricultural Marketing Agreement Act
(2) The issuance of this amendatory
of 1937, as amended (7 U.S.C. 601–674)
order, further amending the aforesaid
and the applicable rules of practice and
order, is favored or approved by at least
procedure effective thereunder (7 CFR
two-thirds of the producers who
part 900), a public hearing was held
participated in a referendum on the
upon the proposed amendments to
question of approval and who, during
Marketing Order No. 905 (7 CFR part
905), regulating the handling of oranges, the period of August 1, 2007 through
July 31, 2008 (which has been deemed
grapefruit, tangerines, and tangelos
to be a representative period), have been
grown in Florida.
engaged within the production area in
Upon the basis of the evidence
the production of such oranges,
introduced at such hearing and the
grapefruit, tangerines, and tangelos; and
record thereof, it is found that:
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.
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Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations
(3) In the absence of a signed
marketing agreement, the issuance of
this amendatory order is the only
practical means pursuant to the
declared policy of the Act of advancing
the interests of producers of oranges,
grapefruit, tangerines, and tangelos in
the production area.
Order Relative to Handling of Oranges,
Grapefruit, Tangerines, and Tangelos
Grown in Florida
It is therefore ordered, That on and
after the effective date hereof, all
handling of oranges, grapefruit,
tangerines, and tangelos grown in
Florida shall be in conformity to, and in
compliance with, the terms and
conditions of the said order as hereby
amended as follows:
The provisions of the proposed order
further amending the order contained in
the Secretary’s Decision issued by the
Administrator on April 6, 2009, and
published in the Federal Register on
April 13, 2009 (74 FR 16798), shall be
and are the terms and provisions of this
order amending the order and set forth
in full herein.
List of Subjects in 7 CFR Part 905
Grapefruit, Marketing agreements,
Oranges, Reporting and recordkeeping
requirements, Tangelos, Tangerines.
For the reasons set forth in the
preamble, Title 7, Chapter IX of the
Code of Federal Regulations is amended
by amending part 905 to read as follows:
■
PART 905—ORANGES, GRAPEFRUIT,
TANGERINES, AND TANGELOS
GROWN IN FLORIDA
1. The authority citation for 7 CFR
part 905 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
2. Amend § 905.22 by revising
paragraphs (a)(2) and (b)(2) to read as
follows:
■
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§ 905.22
Nominations.
(a) * * *
(2) Each nominee shall be a producer
in the district from which he or she is
nominated. In voting for nominees, each
producer shall be entitled to cast one
vote for each nominee in each of the
districts in which he or she is a
producer. At least two of the nominees
and their alternates so nominated shall
be affiliated with a bona fide
cooperative marketing organization.
(b) * * *
(2) Nomination of at least two
members and their alternates shall be
made by bona fide cooperative
marketing organizations which are
handlers. Nominations for not more
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than six members and their alternates
shall be made by handlers who are not
so affiliated. In voting for nominees,
each handler or his or her authorized
representative shall be entitled to cast
one vote, which shall be weighted by
the volume of fruit by such handler
during the then current fiscal period.
■ 3. Revise § 905.23 to read as follows:
§ 905.23
Selection.
(a) From the nominations made
pursuant to § 905.22(a) or from other
qualified persons, the Secretary shall
select one member and one alternate
member to represent District 2 and two
members and two alternate members
each to represent Districts 1, 3, 4, and
5 or such other number of members and
alternate members from each district as
may be prescribed pursuant to § 905.14.
At least two such members and their
alternates shall be affiliated with bona
fide cooperative marketing
organizations.
(b) From the nominations made
pursuant to § 905.22(b) or from other
qualified persons, the Secretary shall
select at least two members and their
alternates to represent bona fide
cooperative marketing organizations
which are handlers, and the remaining
members and their alternates to
represent handlers who are not so
affiliated.
■ 4. In § 905.29, redesignate paragraph
(b) as paragraph (c), and add a new
paragraph (b) to read as follows:
§ 905.29
Inability of members to serve.
*
*
*
*
*
(b) If both a member and his or her
respective alternate are unable to attend
a committee meeting, such member may
designate another alternate to act in his
or her place in order to obtain a quorum:
Provided, That such alternate member
represents the same group affiliation as
the absent member. If the member is
unable to designate such an alternate,
the committee members present may
designate such alternate.
*
*
*
*
*
■ 5. Revise paragraph (c) of § 905.34 to
read as follows:
§ 905.34
Procedure of committees.
*
*
*
*
*
(c) The committee may provide for
meeting by telephone, telegraph, or
other means of communication, and any
vote cast at such a meeting shall be
promptly confirmed in writing:
Provided, That if any assembled meeting
is held, all votes shall be cast in person.
*
*
*
*
*
■ 6. Add a new § 905.54 to read as
follows:
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§ 905.54 Marketing, research and
development.
The committee may, with the
approval of the Secretary, establish, or
provide for the establishment of,
projects including production research,
marketing research and development
projects, and marketing promotion
including paid advertising, designed to
assist, improve, or promote the
marketing, distribution, and
consumption or efficient production of
fruit. The expenses of such projects
shall be paid by funds collected
pursuant to § 905.41. Upon conclusion
of each project, but at least annually, the
committee shall summarize the program
status and accomplishments to its
members and the Secretary. A similar
report to the committee shall be
required of any contracting party on any
project carried out under this section.
Also, for each project, the contracting
party shall be required to maintain
records of money received and
expenditures, and such shall be
available to the committee and the
Secretary.
Dated: September 2, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing
Service.
[FR Doc. E9–21656 Filed 9–8–09; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 920
[Doc. No. AMS–FV–08–0017; FV08–920–2
FR]
Kiwifruit Grown in California; Change
in Reporting Requirements
AGENCY: Agricultural Marketing Service,
USDA.
ACTION: Final rule.
SUMMARY: This rule changes the
reporting requirements currently
prescribed under the marketing order
that regulates the handling of kiwifruit
grown in California. The order is
administered locally by the Kiwifruit
Administrative Committee (Committee).
This rule requires handlers who ship
100,000 or more trays per season to file
weekly shipment and price information
with the Committee. Shipments of
organic kiwifruit are exempt from this
requirement. The Committee will use
this information to prepare its marketing
policy statements and annual reports
and to provide timely information to the
industry to assist them in making
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Agencies
[Federal Register Volume 74, Number 173 (Wednesday, September 9, 2009)]
[Rules and Regulations]
[Pages 46303-46306]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21656]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 /
Rules and Regulations
[[Page 46303]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 905
[Doc. No. AO-85-A10; AMS-FV-07-0132; FV08-905-1]
Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida;
Order Amending Marketing Order No. 905
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the marketing order for oranges,
grapefruit, tangerines, and tangelos grown in Florida. The amendments
were proposed by the Citrus Administrative Committee (committee), which
is responsible for local administration of the order. The amendments
will modify committee representation by cooperative entities; allow
substitute alternates to temporarily represent absent members at
committee meetings; authorize the committee to conduct meetings by
telephone or other means of communication; and authorize the committee
to conduct research and promotion programs, including paid advertising,
for fresh Florida citrus. The amendments are intended to improve the
operation and administration of the order and provide the industry with
additional tools for the marketing of fresh citrus.
DATES: This rule is effective October 9, 2009.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220
SW. Third Avenue, Room 385, Portland, OR 97204; Telephone: (503) 326-
2724, Fax: (503) 326-7440, or E-mail: Melissa.Schmaedick@ams.usda.gov;
or Laurel May, 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: Laurel.May@ams.usda.gov.
Small businesses may request information on this proceeding 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@ams.usda.gov.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Hearing issued on January 24, 2008, and published in the January 29,
2008, issue of the Federal Register (73 FR 5130); a Recommended
Decision issued on December 19, 2008, and published in the December 24,
2008, issue of the Federal Register (73 FR 79028); and a Secretary's
Decision and Referendum Order issued on April 6, 2009, and published in
the April 13, 2009, issue of the Federal Register (74 FR 16798).
This action is governed by the provisions of sections 556 and 557
of Title 5 of the United States Code and is therefore excluded from the
requirements of Executive Order 12866.
Preliminary Statement
This final rule was formulated on the record of a public hearing
held on February 12, 2008, in Winter Haven, Florida. Notice of this
hearing was issued on January 24, 2008, and published in the January
29, 2008, issue of the Federal Register (73 FR 5130). The hearing was
held to consider the proposed amendment of Marketing Order No. 905,
hereinafter referred to as the ``order''.
The hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act,'' and the applicable rules of
practice and procedure governing the formulation of marketing
agreements and marketing orders (7 CFR part 900).
The Notice of Hearing contained four amendment proposals submitted
by committee. Upon the basis of evidence introduced at the hearing and
the record thereof, the Administrator of AMS on December 19, 2008,
filed with the Hearing Clerk, U.S. Department of Agriculture, a
Recommended Decision and Opportunity to File Written Exceptions thereto
by January 23, 2009. No exceptions were filed.
A Secretary's Decision and Referendum Order was issued on April 6,
2009, directing that a referendum be conducted during the period May 4
through May 18, 2009, among growers of fresh oranges, grapefruit,
tangerines, and tangelos to determine whether they favored the proposed
amendments to the order. To become effective, the amendments had to be
approved by at least two-thirds of those producers voting or by voters
representing at least two-thirds of the volume of citrus represented by
voters in the referendum. Three of the proposed amendments were favored
by 95 percent of the voters, representing 99 percent of the volume. One
amendment was favored by 88 percent of voters, who represented 49
percent of the volume.
The amendments approved by voters and included in this order will:
1. Modify committee representation by cooperative committees;
2. Allow substitute alternates to temporarily represent absent
members at committee meetings;
3. Authorize the committee to conduct meetings by telephone or
other means of communication; and
4. Add authority for research and promotion programs, including
paid advertising, for fresh Florida citrus.
The Agricultural Marketing Service (AMS) also proposed to make such
changes to the order as might be necessary to ensure that all of the
order's provisions conform to the effectuated amendments. AMS proposed
replacing the word ``he'' in the second sentence of Sec. 905.22(a)(2)
with the words ``he or she'' to conform to other proposed changes to
Sec. 905.22.
An amended marketing agreement was subsequently provided to all
fresh orange, grapefruit, tangerine, and tangelo handlers in the
production area for their approval. The marketing agreement was not
approved by handlers representing at least 50 percent of the volume of
fresh oranges, grapefruit, tangerines, and tangelos handled by all
handlers during the representative period of August 1, 2007 through
July 31, 2008.
Small Business Considerations
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA)
[[Page 46304]]
(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
business subject to such actions so that small businesses will not be
unduly or disproportionately burdened. Marketing orders and amendments
thereto are unique in that they are normally brought about through
group action of essentially small entities for their own benefit.
Small agricultural service firms, which include handlers regulated
under the order, have been defined by the Small Business Administration
(SBA) (13 CFR 121.201) as those having annual receipts of less than
$7,000,000. Small agricultural producers have been defined as those
with annual receipts of less than $750,000.
There are approximately 48 handlers of fresh citrus subject to
regulation under the order and approximately 7,700 producers of fresh
citrus in the regulated area. Information provided at the hearing
indicates that over 90 percent of the handlers would be considered
small agricultural service firms. Hearing testimony also suggests that
the majority of producers would also be considered small entities
according to the SBA's definition.
The order regulates the handling of fresh citrus grown in the state
of Florida. Total bearing citrus acreage has declined from a peak of
approximately 800,000 acres in 1996-97 to about 550,000 acres in 2006-
07, largely due to hurricane damage and the removal of diseased citrus
trees. Approximately 7.236 million tons of citrus were produced in
Florida during the 2006-07 season--a decline of approximately 6 million
tons compared to the 1996-97 season. According to evidence provided at
the hearing, approximately 10 percent of Florida citrus is used in the
fresh market, while the remainder is used in the production of
processed juice products. Generally, 40 percent of Florida's fresh
citrus is shipped to export markets, including the Pacific Rim
countries, Europe, and Canada.
Under the order, outgoing quality regulations are established for
fresh citrus shipments, and statistical information is collected.
Program activities administered by the committee are designed to
support large and small citrus producers and handlers. The 18-member
committee is comprised of both producer and handler representatives
from the production area, as well as a public member. Committee
meetings where regulatory recommendations and other decisions are made
are open to the public. All members are able to participate in
committee deliberations, and each committee member has an equal vote.
Others in attendance at meetings are also allowed to express their
views.
After discussions within the citrus industry, the committee
considered developing its own research and marketing promotion programs
focusing on fresh Florida citrus. An amendment study subcommittee was
formed to explore this idea and other possible order revisions. The
subcommittee developed a list of proposed amendments to the order,
which was then presented to the committee and shared with other
industry organizations. The proposed amendments were also posted on the
committee's Web site for review by the Florida citrus industry at
large.
The committee met to review and discuss the subcommittee's
proposals at its meeting on May 29, 2007. At that time, the committee
voted unanimously to support the four proposed amendments that were
forwarded to AMS.
In addition, the hearing to receive evidence on the proposed
changes was open to the public and all interested parties were invited
and encouraged to participate and provide their views.
The amendments are intended to provide the committee and the
industry with additional flexibility in administering the order and
producing and marketing fresh Florida citrus. Record evidence indicates
that the amendments are intended to benefit all producers and handlers
under the order, regardless of size. All producer and handler witnesses
supported the amendments at the hearing. Some witnesses commented on
the implications of implementing specific marketing, research, and
development programs. In that context, witnesses stated that they
expected the benefits to producers and handlers to outweigh any
potential costs.
The amendment reducing the required number of cooperative producer
and cooperative handler seats on the committee from three each to two
each will have no economic impact on producers or handlers of any size.
The number of cooperative entities in the industry has diminished
considerably since the order's promulgation. Reducing the number of
cooperative seats on the committee at this time will reflect the
current composition of the industry. The reduction will help ensure
that the interests of all large and small producers and handlers,
whether independent or members of cooperatives, are represented
appropriately during committee deliberations.
Allowing substitute alternates to represent absent members at
committee meetings, will have no adverse economic impact on producers
or handlers of any size. Members who are unable to attend committee
meetings will be allowed to designate available alternates to represent
them if their own alternates are also unavailable in order to achieve a
quorum. If members are unable to designate substitute alternates, the
committee can designate substitutes at the meeting, if necessary to
secure a quorum. Substitute alternates will be required to represent
the same group affiliation (producer or handler) as the absent members
and alternates. The amendment will allow alternates not otherwise
representing absent members to represent other members at committee
meetings in order to secure a quorum. This will help ensure that quorum
requirements are met and that committee business is addressed in a
timely manner.
Adding authority to conduct committee meetings by telephone or
other means of communication is expected to benefit producers and
handlers of all sizes by improving committee efficiencies and
encouraging greater participation in industry deliberations. It is not
expected to result in any significant increased costs to producers or
handlers. Using modern communication technology will allow the
committee to respond more quickly to urgent industry needs and will
provide greater access to meetings by members and other industry
participants. Greater meeting flexibility will make it easier for the
committee to hold additional meetings where there is a need for
lengthier discussion and consensus building. These changes are
consistent with current practices in other citrus industry settings.
Adding authority to establish research and promotion programs will
enable the committee to address the specific needs of the Florida fresh
citrus industry by recommending, conducting, and funding research
projects and promotional programs, including paid advertising, that
focus on the production, handling, and marketing of fresh citrus.
Hearing witnesses testified that the committee's assessment rate
could increase to cover the costs of any newly authorized research and
promotion projects, but that there may be an offset by decreases in
payments by the industry to fund projects through other entities. Any
increased assessment costs would be based on the volume of fresh
[[Page 46305]]
citrus shipped by each handler and would, therefore, be applied
proportionately to all handlers.
The benefits expected to accrue to producers and handlers following
implementation of this amendment should outweigh the costs. Witnesses
advocated the establishment of production research programs that would
assist with the development of new varieties and post-harvest handling
methods to improve the marketability of fresh Florida citrus. Marketing
programs specific to fresh citrus are expected to increase consumer
demand and sales, which should in turn increase returns to producers
and handlers. Improved production and marketing strategies developed
under the authorized programs are expected to outweigh any additional
costs to the Florida fresh citrus industry. In addition, any increased
costs would be proportional to a handler's size and would not unduly or
disproportionately impact small entities. Witness support for this
amendment was unanimous at the hearing.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impact of the proposed
amendments to the order on small entities. The record evidence is that
implementation of the amendments will have little or no impact on
producers and handlers.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this proposed rule. These amendments are
intended to improve the operation and administration of the order and
to assist in the marketing of fresh Florida citrus.
Paperwork Reduction Act
Information collection requirements for Part 905 are currently
approved by the Office of Management and Budget (OMB), under OMB Number
0581-0189--``Generic OMB Fruit Crops.'' No changes in these
requirements are anticipated as a result of these amendments. Should
any such changes become necessary, they will be submitted to OMB for
approval.
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 Government Paperwork
Elimination Act, which requires Government agencies in general to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible.
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.
Civil Justice Reform
The amendments to Marketing Order 905 as stated herein have been
reviewed under Executive Order 12988, Civil Justice Reform. They are
not intended to have retroactive effect.
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 the
entry of the ruling.
Order Amending the Order Regulating the Handling of Oranges,
Grapefruit, Tangerines, and Tangelos Grown in Florida
Findings and Determinations
The findings and determinations set forth hereinafter are
supplementary and in addition to the findings and determinations
previously made in connection with the issuance of the order; and all
of 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.
(a) Findings and Determinations Upon the Basis of the Hearing
Record.
Pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601-674) and the applicable rules of
practice and procedure effective thereunder (7 CFR part 900), a public
hearing was held upon the proposed amendments to Marketing Order No.
905 (7 CFR part 905), regulating the handling of oranges, grapefruit,
tangerines, and tangelos grown in Florida.
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The marketing order, as amended, and as hereby further amended,
and all of the terms and conditions thereof, will tend to effectuate
the declared policy of the Act;
(2) The marketing order, as amended, and as hereby further amended,
regulates the handling of oranges, grapefruit, tangerines, and tangelos
grown in the production area 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 upon which hearings have been
held;
(3) The marketing order, as amended, and as hereby 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
subdivision of the production area would not effectively carry out the
declared policy of the Act;
(4) The marketing order, as amended, and as hereby 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
oranges, grapefruit, tangerines, and tangelos grown in the production
area; and
(5) All handling of oranges, grapefruit, tangerines, and tangelos
grown in the production area is in the current of interstate or foreign
commerce or directly burdens, obstructs, or affects such commerce.
(b) Determinations. It is hereby determined that:
(1) Handlers (excluding cooperative associations of producers who
are not engaged in processing, distributing, or shipping oranges,
grapefruit, tangerines, and tangelos covered by the order as hereby
amended) who, during the period August 1, 2007 through July 31, 2008,
handled 50 percent or more of the volume of such oranges, grapefruit,
tangerines, and tangelos covered by said order, as hereby amended, have
not signed an amended marketing agreement; and,
(2) The issuance of this amendatory order, further amending the
aforesaid order, is favored or approved by at least two-thirds of the
producers who participated in a referendum on the question of approval
and who, during the period of August 1, 2007 through July 31, 2008
(which has been deemed to be a representative period), have been
engaged within the production area in the production of such oranges,
grapefruit, tangerines, and tangelos; and
[[Page 46306]]
(3) In the absence of a signed marketing agreement, the issuance of
this amendatory order is the only practical means pursuant to the
declared policy of the Act of advancing the interests of producers of
oranges, grapefruit, tangerines, and tangelos in the production area.
Order Relative to Handling of Oranges, Grapefruit, Tangerines, and
Tangelos Grown in Florida
It is therefore ordered, That on and after the effective date
hereof, all handling of oranges, grapefruit, tangerines, and tangelos
grown in Florida shall be in conformity to, and in compliance with, the
terms and conditions of the said order as hereby amended as follows:
The provisions of the proposed order further amending the order
contained in the Secretary's Decision issued by the Administrator on
April 6, 2009, and published in the Federal Register on April 13, 2009
(74 FR 16798), shall be and are the terms and provisions of this order
amending the order and set forth in full herein.
List of Subjects in 7 CFR Part 905
Grapefruit, Marketing agreements, Oranges, Reporting and
recordkeeping requirements, Tangelos, Tangerines.
0
For the reasons set forth in the preamble, Title 7, Chapter IX of the
Code of Federal Regulations is amended by amending part 905 to read as
follows:
PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND TANGELOS GROWN IN
FLORIDA
0
1. The authority citation for 7 CFR part 905 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Amend Sec. 905.22 by revising paragraphs (a)(2) and (b)(2) to read
as follows:
Sec. 905.22 Nominations.
(a) * * *
(2) Each nominee shall be a producer in the district from which he
or she is nominated. In voting for nominees, each producer shall be
entitled to cast one vote for each nominee in each of the districts in
which he or she is a producer. At least two of the nominees and their
alternates so nominated shall be affiliated with a bona fide
cooperative marketing organization.
(b) * * *
(2) Nomination of at least two members and their alternates shall
be made by bona fide cooperative marketing organizations which are
handlers. Nominations for not more than six members and their
alternates shall be made by handlers who are not so affiliated. In
voting for nominees, each handler or his or her authorized
representative shall be entitled to cast one vote, which shall be
weighted by the volume of fruit by such handler during the then current
fiscal period.
0
3. Revise Sec. 905.23 to read as follows:
Sec. 905.23 Selection.
(a) From the nominations made pursuant to Sec. 905.22(a) or from
other qualified persons, the Secretary shall select one member and one
alternate member to represent District 2 and two members and two
alternate members each to represent Districts 1, 3, 4, and 5 or such
other number of members and alternate members from each district as may
be prescribed pursuant to Sec. 905.14. At least two such members and
their alternates shall be affiliated with bona fide cooperative
marketing organizations.
(b) From the nominations made pursuant to Sec. 905.22(b) or from
other qualified persons, the Secretary shall select at least two
members and their alternates to represent bona fide cooperative
marketing organizations which are handlers, and the remaining members
and their alternates to represent handlers who are not so affiliated.
0
4. In Sec. 905.29, redesignate paragraph (b) as paragraph (c), and add
a new paragraph (b) to read as follows:
Sec. 905.29 Inability of members to serve.
* * * * *
(b) If both a member and his or her respective alternate are unable
to attend a committee meeting, such member may designate another
alternate to act in his or her place in order to obtain a quorum:
Provided, That such alternate member represents the same group
affiliation as the absent member. If the member is unable to designate
such an alternate, the committee members present may designate such
alternate.
* * * * *
0
5. Revise paragraph (c) of Sec. 905.34 to read as follows:
Sec. 905.34 Procedure of committees.
* * * * *
(c) The committee may provide for meeting by telephone, telegraph,
or other means of communication, and any vote cast at such a meeting
shall be promptly confirmed in writing: Provided, That if any assembled
meeting is held, all votes shall be cast in person.
* * * * *
0
6. Add a new Sec. 905.54 to read as follows:
Sec. 905.54 Marketing, research and development.
The committee may, with the approval of the Secretary, establish,
or provide for the establishment of, projects including production
research, marketing research and development projects, and marketing
promotion including paid advertising, designed to assist, improve, or
promote the marketing, distribution, and consumption or efficient
production of fruit. The expenses of such projects shall be paid by
funds collected pursuant to Sec. 905.41. Upon conclusion of each
project, but at least annually, the committee shall summarize the
program status and accomplishments to its members and the Secretary. A
similar report to the committee shall be required of any contracting
party on any project carried out under this section. Also, for each
project, the contracting party shall be required to maintain records of
money received and expenditures, and such shall be available to the
committee and the Secretary.
Dated: September 2, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-21656 Filed 9-8-09; 8:45 am]
BILLING CODE 3410-02-P