Grapes Grown in a Designated Area of Southeastern California; Proposed Amendments to Marketing Order, 32043-32046 [2015-13647]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 80, Number 108 (Friday, June 5, 2015)]
[Proposed Rules]
[Pages 32043-32046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13647]


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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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rulemaking invites comments on three proposed 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 proposed 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 proposals are 
intended to increase the Committee's effectiveness and bolster industry 
participation in Committee activities.
    In addition to the Committee's proposals, the Agricultural 
Marketing Service (AMS) proposes an amendment that would add authority 
for periodic continuance referenda to allow producers to indicate 
whether or not there exists continuing support for the order.

DATES: Comments must be received by August 4, 2015.

ADDRESSES: Written comments should be submitted to the Docket Clerk, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: https://www.regulations.gov. All comments should reference the document number 
and the date and page number of this issue of the Federal Register. All 
comments submitted in response to this proposed rule will be included 
in the record and will be made available for public inspection in the 
Office of the Docket Clerk during regular business hours, or can be 
viewed at: https://www.regulations.gov. Please be advised that the 
identity of the individuals or entities submitting the comments will be 
made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: 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) 
authorizes amendment of the order through this informal rulemaking 
action. AMS will consider comments received in response to this rule, 
and based on all the information available, will determine if order 
amendment is warranted. If AMS determines amendment of the order is 
warranted, a subsequent proposed rule and referendum order would be 
issued and producers would be allowed to vote for or against the 
proposed order amendments. AMS would then issue a final rule 
effectuating any amendments

[[Page 32044]]

approved by producers in the referendum.
    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 rule is not intended to have retroactive effect. 
This rule 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 
rule.
    Two of the proposed amendments were unanimously recommended by the 
Committee following deliberations at a public meeting held on November 
5, 2013. The Committee's proposed amendments would amend the marketing 
order by: (1) Increasing the 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

    Section 925.21 of the order provides that terms of office for 
Committee members and alternates is one fiscal period. The nomination 
and selection process for the 12 members and 12 alternates is conducted 
annually and may take a number of months to complete.
    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 proposed 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, because the 
industry is relatively small with a limited number of qualified 
candidates available to fill positions, 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.
    Currently, 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 provision 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. The proposal 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 proposes an amendment to 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.
    Therefore, it is recommended that Sec.  925.63--Termination, be 
amended by redesignating paragraph (c) as paragraph (d) and adding a 
new paragraph (c) to

[[Page 32045]]

provide that a continuance referendum shall be conducted six years 
after the amendment becomes effective and every six years thereafter. 
The new paragraph (c) of Sec.  925.63 should 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.

Initial Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing 
Service (AMS) has considered the economic impact of this action on 
small entities. Accordingly, AMS has prepared this initial regulatory 
flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 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 financial effects on producers 
or handlers. However, 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 would reduce paperwork and the time spent 
completing it.
    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 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.
    Finally, interested persons are invited to submit comments on the 
proposed amendments to the order, including comments on the regulatory 
and informational impacts of this action on small businesses.
    Following analysis of any comments received on the amendments 
proposed in this rule, AMS will evaluate all available information and 
determine whether to proceed. If appropriate, a proposed rule and 
referendum order would be issued, and producers would be provided the 
opportunity to vote for or against the proposed amendments. Information 
about the referendum, including dates and voter eligibility 
requirements, would be published in a future issue of the Federal 
Register. A final rule would then be issued to effectuate any 
amendments favored by producers participating in the referendum.
    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.

General Findings

    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 hereby proposed to be amended and all of 
the

[[Page 32046]]

terms and conditions thereof, would tend to effectuate the declared 
policy of the Act;
    2. The marketing order as hereby proposed to be 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 hereby proposed to be 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;
    4. The marketing order as hereby proposed to be 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 or packed in the production area; and
    5. All handling of table grapes produced or packed 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.
    A 60-day comment period is provided to allow interested persons to 
respond to these proposals. Any comments received on the amendments 
proposed in this rule will be analyzed, and if AMS determines to 
proceed based on all the information presented, a producer referendum 
would be conducted to determine producer support for the proposed 
amendments. If appropriate, a final rule would then be issued to 
effectuate the amendments favored by producers participating in the 
referendum.

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 part 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: June 1, 2015.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-13647 Filed 6-4-15; 8:45 am]
 BILLING CODE 3410-02-P