Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Establishment of Assessment Rates, 43667-43670 [2017-19554]

Download as PDF 43667 Rules and Regulations Federal Register Vol. 82, No. 180 Tuesday, September 19, 2017 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. DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 986 [Doc. No. AMS–SC–17–0027; SC17–986–1 FR] Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Establishment of Assessment Rates Agricultural Marketing Service, USDA. ACTION: Final rule. AGENCY: This rule implements a recommendation from the American Pecan Council (Council) to establish the initial assessment rates for the 2016–17 and subsequent fiscal years at $0.03 per pound for improved varieties, $0.02 per pound for native and seedling varieties, and $0.02 per pound for substandard pecans handled under the pecan marketing order (order). The Council locally administers the order and is comprised of growers and handlers of pecans operating within the production area and a public member. Assessments upon pecan handlers will be used by the Council to fund reasonable and necessary expenses of the program. The fiscal year begins October 1 and ends September 30. The assessment rates will remain in effect indefinitely unless modified, suspended, or terminated. DATES: Effective September 20, 2017. FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324– 3375, Fax: (863) 291–8614, or Email: Jennie.Varela@ams.usda.gov or Christian.Nissen@ams.usda.gov. asabaliauskas on DSKBBXCHB2PROD with RULES SUMMARY: VerDate Sep<11>2014 16:10 Sep 18, 2017 Jkt 241001 Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720– 2491, Fax: (202) 720–8938, or Email: Richard.Lower@ams.usda.gov. SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement and Order No. 986 (7 CFR part 986), regulating the handling of pecans grown in the states of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas, 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.’’ The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 13563 and 13175. This rule does not meet the definition of a significant regulatory action contained in section 3(f) of Executive Order 12866 and is not subject to review by the Office of Management and Budget (OMB). Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB’s Memorandum titled ‘‘Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled ‘Reducing Regulation and Controlling Regulatory Costs’ ’’ (February 2, 2017). This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, pecan handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rates as issued herein will be applicable to all assessable pecans beginning with the 2016–17 fiscal year that began on October 1, 2016, and continue until amended, suspended, or terminated. 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 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA’s ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule establishes assessment rates for the 2016–17 and subsequent fiscal years at $0.03 per pound for improved varieties and $0.02 per pound for native and seedling varieties and for substandard pecans handled. The assessment rates are applicable to all assessable pecans beginning on October 1, 2016, and continue until amended, suspended, or terminated. The order provides authority for the Council, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Council are growers and handlers of pecans and a public member. They are familiar with the Council’s needs and with the costs for goods and services in their respective local areas and are thus in a position to formulate an appropriate budget and assessment rates. The assessment rates are formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. For the 2016–17 and subsequent fiscal years, the Council recommended, and USDA approved, assessment rates that would continue in effect from fiscal year to fiscal year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Council or other information available to USDA. The Council met on November 17, 2016, and unanimously recommended 2016–17 expenditures of $6,000,000 and assessment rates of $0.03 per pound for improved varieties, $0.02 per pound for native and seedling varieties, and $0.02 per pound for substandard pecans handled. These are the first budget of E:\FR\FM\19SER1.SGM 19SER1 43668 Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations asabaliauskas on DSKBBXCHB2PROD with RULES expenditures and assessment rates established under this order. The major expenditures recommended by the Council for the 2016–17 year include $3,850,000 for marketing and promotion, $900,000 for administration, $250,000 for reporting and statistics, and $200,000 for compliance. The assessment rates recommended by the Council were derived by dividing anticipated expenses by expected shipments of pecans. Pecan shipments for the year are estimated at 260,000,000 pounds, with about 75 percent, or an estimated 195 million pounds of improved varieties and about 25 percent of native and seedling varieties and substandard pecans. This should provide adequate assessment income to cover the budgeted expenses and establish the authorized reserve. Income derived from handler assessments should be adequate to cover budgeted expenses. As the Council has no established reserve, its budget also allocated $500,000 for reserve funds to be carried into the next fiscal year. This will be within the maximum permitted by the order of approximately three fiscal years’ expenses. If the assessment rates generate less money than is anticipated, the Council and the Agricultural Marketing Service (AMS) will adjust the budget accordingly. Although these assessment rates will be in effect for an indefinite period, the Council will continue to meet prior to or during each fiscal year to recommend a budget of expenses and consider recommendations for modification of the assessment rates. The dates and times of Council meetings are available from the Council or USDA. Council meetings are open to the public, and interested persons may express their views at these meetings. USDA will evaluate Council recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Council’s budget for subsequent fiscal years would be reviewed and, as appropriate, approved by USDA. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), AMS has considered the economic impact of this rule 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. VerDate Sep<11>2014 16:10 Sep 18, 2017 Jkt 241001 Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 2,500 producers of pecans in the production area and approximately 250 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201). According to information from the National Agricultural Statistics Service (NASS), the average grower price for pecans during the 2015–16 season was $2.20 per pound, and 254 million pounds were utilized. The value for pecans in that year totaled $558.8 million ($2.20 per pound multiplied by 254 million pounds). Taking the total value of production for pecans and dividing it by the total number of pecan producers provides a return per grower of $223,520. Using the average price and utilization information, and assuming a normal distribution, the majority of growers have annual receipts of less than $750,000. Evidence presented at the order promulgation hearing indicates an average handler margin of $0.58 per pound for in-shell pecans for an estimated handler price of $2.78 per pound. With a total 2015 production of 254 million pounds, the total value of production in 2015 was $706.12 million ($2.78 per pound multiplied by 254 million pounds). Taking the total value of production for pecans and dividing it by the total number of pecan handlers provides a return per handler of $2,824,480. Using this estimated price, the utilization volume, number of handlers, and assuming a normal distribution, the majority of handlers have annual receipts of less than $7,500,000. Thus, the majority of producers and handlers of pecans grown in the states of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas may be classified as small entities. This rule establishes the assessment rates to be collected from handlers for the 2016–17 and subsequent fiscal years. The Council unanimously recommended 2016–17 expenditures of $6,000,000 and an assessment rate of $0.03 per pound for improved varieties, PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 $0.02 per pound for native and seedling varieties, and $0.02 per pound for substandard pecans handled. The quantity of pecans for the 2016–17 year is estimated at 260,000,000 pounds, with about 75 percent, or 195 million pounds, of improved varieties and about 25 percent of native and seedling varieties and substandard pecans. This should provide adequate assessment income to cover the budgeted expenses and establish the authorized reserve. Income derived from handler assessments should be adequate to cover budgeted expenses. As the Council has no established reserve, its budget also allocated $500,000 for reserve funds to be carried into the next fiscal year. This will be within the maximum permitted by the order of approximately three fiscal years’ expenses. If the assessment rates generate less money than is anticipated, the Council and AMS will adjust the budget accordingly. The major expenditures recommended by the Council for the 2016–17 fiscal year include $3,850,000 for marketing and promotion, $900,000 for administration, $250,000 for reporting and statistics, and $200,000 for compliance. The Council’s budget also includes a reserve of $500,000. These are initial budget expenditures and assessment rates for the order. The order establishes a range of assessment rates that are permissible during the initial four years of the order. Specifically, improved varieties shall be initially assessed at $0.02 to $0.03 per pound and native, seedling, and substandard pecans shall be initially assessed at $0.01 to $0.02 per pound. Prior to arriving at this budget and assessment rates, the Council considered information from various sources, such as the Council’s Governance Committee and its Marketing, Research, and Development Committee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various activities to the pecan industry. The Council also considered different assessment levels. Some members expressed concern regarding a $0.02 assessment on native, seedling, and substandard pecans, given the prices of those pecans. Another member suggested the idea of establishing a lower rate for substandard pecans. The need to collect sufficient assessments to fund the start-up costs for the order and the development of a marketing program was also noted. After consideration and discussion, the Council unanimously supported the levels as recommended. A communication from one of the states in the production area that recommended postponing the E:\FR\FM\19SER1.SGM 19SER1 asabaliauskas on DSKBBXCHB2PROD with RULES Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations establishment of an assessment rate was also considered. The Council determined that waiting until the next fiscal year to establish assessment rates would be costly in terms of time lost for a program that had been anticipated by the industry to improve its marketing. The Council also recognized that the industry had been notified through multiple outlets of communication of the possible range of assessments in the order. The Council expressed a preference to establish these rates and begin its work immediately rather than borrowing funds and being limited in its operations until the coming fiscal year. Therefore, these alternatives were rejected, and the Council ultimately determined that 2016–17 expenditures of $6,000,000 were appropriate and the recommended assessment rates would generate sufficient revenue to meet its expenses. A review of historical information and preliminary information pertaining to the upcoming production year indicates the grower price for the 2016–17 season could range between $1.73 and $2.31 per pound for improved varieties, and between $0.88 and $1.36 per pound for native and seedling pecans. Therefore, the estimated assessment revenue for the 2016–17 crop year as a percentage of total grower revenue could range between 1.3 and 1.7 percent for improved pecans and 1.5 and 2.2 percent for native and seedling pecans. This action establishes an assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the marketing order. In addition, the Council’s meeting was widely publicized throughout the pecan industry and all interested persons were invited to attend the meeting and participate in Council deliberations on all issues. Like all Council meetings, the November 17, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order’s information collection requirements have been previously approved by OMB and assigned OMB No. 0581–0291 ‘‘Pecans Grown in AL, AR, AZ, CA, FL, GA, KS, LA, MO, MS, NC, NM, OK, SC and TX.’’ No changes in those requirements are necessary as a result of this action. However, the Council is recommending reporting requirements, to include information on pecans received, VerDate Sep<11>2014 16:10 Sep 18, 2017 Jkt 241001 shipped, exported, or in inventory, which would facilitate the collection of the assessments. These requirements are being considered under a separate action. Should any changes to the information collection requirements become necessary, they would be submitted to OMB for approval. This rule imposes no additional reporting or recordkeeping requirements on either small or large pecan handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final 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. A proposed rule concerning this action was published in the Federal Register on June, 13, 2017 (82 FR 27028). Copies of the proposed rule were also mailed or sent via facsimile to all known pecan handlers. Finally, the proposal was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending July 13, 2017, was provided for interested persons to respond to the proposal. Two comments were received during the comment period in response to the proposal. The commenters included a State Farm Bureau and Council staff. Both comments expressed support for finalizing the proposed rule as issued. Each commenter valued the opportunity to market and promote pecans. One comment further highlighted the industry’s need for product research for market and economic development. Accordingly, no changes will be made to the rule as proposed, based on the comments received. 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/ rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the information and recommendation submitted by the Council and other available information, it is hereby found PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 43669 that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because handlers are aware of this action, which was unanimously recommended by the Council at a public meeting. The proposed rule provided for a 30-day comment period and no comments opposing the proposal were received. Furthermore, the 2016–17 fiscal year ends on September 30, 2017, and the marketing order requires that the rate of assessment for each fiscal year apply to all pecans handled during such fiscal year. If this rule is not effective before September 30, 2017, the Council will not have sufficient funds to cover expenses it has incurred for the 2016–17 crop year. List of Subjects in 7 CFR Part 986 Marketing agreements, Pecans, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 986 is amended as follows: PART 986—PECANS GROWN IN THE STATES OF ALABAMA, ARKANSAS, ARIZONA, CALIFORNIA, FLORIDA, GEORGIA, KANSAS, LOUISIANA, MISSOURI, MISSISSIPPI, NORTH CAROLINA, NEW MEXICO, OKLAHOMA, SOUTH CAROLINA, AND TEXAS 1. The authority citation for 7 CFR part 986 continues to read as follows: ■ Authority: 7 U.S.C. 601–674. §§ 986.1 through 986.99 Subpart A] [Designated as 2. Designate §§ 986.1 through 986.99 as subpart A and add a heading for subpart A to read as follows: ■ Subpart A—Order Regulating Handling of Pecans 3. Add subpart B, consisting of § 986.161, to read as follows: ■ Subpart B—Administrative Provisions § 986.161 Assessment rates. On and after October 1, 2016, assessment rates of $0.03 per pound for pecans classified as improved, $0.02 per pound for pecans classified as native and seedling, and $0.02 per pound for pecans classified as substandard pecans are established. E:\FR\FM\19SER1.SGM 19SER1 43670 Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations Dated: September 11, 2017. Bruce Summers, Acting Administrator, Agricultural Marketing Service. [FR Doc. 2017–19554 Filed 9–18–17; 8:45 am] BILLING CODE 3410–02–P DEPARTMENT OF AGRICULTURE Rural Utilities Service 7 CFR Part 1780 RIN 0572–AC36 Water and Waste Loans and Grants Rural Utilities Service, USDA. Final rule. AGENCY: ACTION: The Rural Utilities Service (RUS), a Rural Development agency of the United States Department of Agriculture (USDA), is revising the regulation used to process water and waste disposal loans and grants to remove the reference to the 11–GO Bond Buyer Index. This change will allow the Agency to respond to changes in indices and potentially reduce the budget authority necessary to fund the program. DATES: This rule is effective October 19, 2017. FOR FURTHER INFORMATION CONTACT: Susan Woolard, Community Programs Specialist, Rural Utilities Service, U.S. Department of Agriculture, STOP 1570, 1400 Independence Ave. SW., Washington, DC 20250–0787, telephone: (202) 720–9631. Email contact susan.woolard@wdc.usda.gov. Additional Information about Rural Development and its programs is available on the Internet at https:// www.rd.usda.gov. SUPPLEMENTARY INFORMATION: SUMMARY: asabaliauskas on DSKBBXCHB2PROD with RULES Executive Order 12866 This final rule has been determined to be non-significant for purposes of Executive Order (E.O.) 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB). Catalog of Federal Domestic Assistance The affected programs are listed in the Catalog of Federal Domestic Assistance (CFDA) Program under 10.760, Water and Waste Disposal Systems for Rural Communities. This catalog is available electronically through the free CFDA Web site on the Internet at https:// www.cfda.gov/. The print edition may be purchased by calling the Superintendent of Documents at (202) 512–1800 or toll free at (866) 512–1800, or by ordering online at https:// bookstore.gpo.gov/. VerDate Sep<11>2014 16:10 Sep 18, 2017 Jkt 241001 Executive Order 12372, Intergovernmental Review of Federal Programs This program is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. RUS conducts intergovernmental consultations for each loan in the manner delineated in 2 CFR part 200 and 400. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments The Agency has determined that this final rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. Consequently, the Agency will not conduct tribal consultation sessions. Executive Order 12988, Civil Justice Reform This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this final rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) No retroactive effect will be given to this rule; and (3) Administrative proceedings of the National Appeals Division (7 CFR part 11) must be exhausted before bringing suit in court challenging action taken under this rule. National Environmental Policy Act Certification The final rule has been reviewed in accordance with 7 CFR part 1970, Environmental Policies and Procedures. The Agency has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment and, in accordance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq., an Environmental Impact Statement is not required. Loan and grant applications will be reviewed individually to determine compliance with Agency environmental regulations and with NEPA. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 RUS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires RUS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most costeffective, or least burdensome alternative that achieves the objectives of the rule. This final rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601–602) (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This final rule; however, is not subject to the APA under 5 U.S.C. 553(a)(2) and 5 U.S.C. 553(b)(3)(A) nor any other statute. Executive Order 13132, Federalism It has been determined, under E.O. 13132, Federalism, that the policies contained in this final rule do not have any substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Nor does this final rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the states is not required. E-Government Act Compliance The Agency is committed to complying with the E-Government 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 and 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. E:\FR\FM\19SER1.SGM 19SER1

Agencies

[Federal Register Volume 82, Number 180 (Tuesday, September 19, 2017)]
[Rules and Regulations]
[Pages 43667-43670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19554]

========================================================================
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.

========================================================================

Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 /
Rules and Regulations

[[Page 43667]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 986

[Doc. No. AMS-SC-17-0027; SC17-986-1 FR]

Pecans Grown in the States of Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas;
Establishment of Assessment Rates

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule implements a recommendation from the American Pecan
Council (Council) to establish the initial assessment rates for the
2016-17 and subsequent fiscal years at $0.03 per pound for improved
varieties, $0.02 per pound for native and seedling varieties, and $0.02
per pound for substandard pecans handled under the pecan marketing
order (order). The Council locally administers the order and is
comprised of growers and handlers of pecans operating within the
production area and a public member. Assessments upon pecan handlers
will be used by the Council to fund reasonable and necessary expenses
of the program. The fiscal year begins October 1 and ends September 30.
The assessment rates will remain in effect indefinitely unless
modified, suspended, or terminated.

DATES: Effective September 20, 2017.

FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Marketing
Specialist, or Christian D. Nissen, Regional Director, Southeast
Marketing Field Office, Marketing Order and Agreement Division,
Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax:
(863) 291-8614, or Email: Jennie.Varela@ams.usda.gov or
Christian.Nissen@ams.usda.gov.
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue
SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202) 720-8938, or Email: Richard.Lower@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 986 (7 CFR part 986), regulating the handling
of pecans grown in the states of Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas,
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.''
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Orders 13563 and 13175. This rule does not
meet the definition of a significant regulatory action contained in
section 3(f) of Executive Order 12866 and is not subject to review by
the Office of Management and Budget (OMB). Additionally, because this
rule does not meet the definition of a significant regulatory action,
it does not trigger the requirements contained in Executive Order
13771. See OMB's Memorandum titled ``Interim Guidance Implementing
Section 2 of the Executive Order of January 30, 2017, titled `Reducing
Regulation and Controlling Regulatory Costs'[thinsp]'' (February 2,
2017).
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, pecan handlers
are subject to assessments. Funds to administer the order are derived
from such assessments. It is intended that the assessment rates as
issued herein will be applicable to all assessable pecans beginning
with the 2016-17 fiscal year that began on October 1, 2016, and
continue until amended, suspended, or terminated.
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. Such
handler is afforded the opportunity for a hearing on the petition.
After the hearing, USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule establishes assessment rates for the 2016-17 and
subsequent fiscal years at $0.03 per pound for improved varieties and
$0.02 per pound for native and seedling varieties and for substandard
pecans handled. The assessment rates are applicable to all assessable
pecans beginning on October 1, 2016, and continue until amended,
suspended, or terminated.
The order provides authority for the Council, with the approval of
USDA, to formulate an annual budget of expenses and collect assessments
from handlers to administer the program. The members of the Council are
growers and handlers of pecans and a public member. They are familiar
with the Council's needs and with the costs for goods and services in
their respective local areas and are thus in a position to formulate an
appropriate budget and assessment rates. The assessment rates are
formulated and discussed in a public meeting. Thus, all directly
affected persons have an opportunity to participate and provide input.
For the 2016-17 and subsequent fiscal years, the Council
recommended, and USDA approved, assessment rates that would continue in
effect from fiscal year to fiscal year unless modified, suspended, or
terminated by USDA upon recommendation and information submitted by the
Council or other information available to USDA.
The Council met on November 17, 2016, and unanimously recommended
2016-17 expenditures of $6,000,000 and assessment rates of $0.03 per
pound for improved varieties, $0.02 per pound for native and seedling
varieties, and $0.02 per pound for substandard pecans handled. These
are the first budget of

[[Page 43668]]

expenditures and assessment rates established under this order.
The major expenditures recommended by the Council for the 2016-17
year include $3,850,000 for marketing and promotion, $900,000 for
administration, $250,000 for reporting and statistics, and $200,000 for
compliance.
The assessment rates recommended by the Council were derived by
dividing anticipated expenses by expected shipments of pecans. Pecan
shipments for the year are estimated at 260,000,000 pounds, with about
75 percent, or an estimated 195 million pounds of improved varieties
and about 25 percent of native and seedling varieties and substandard
pecans. This should provide adequate assessment income to cover the
budgeted expenses and establish the authorized reserve. Income derived
from handler assessments should be adequate to cover budgeted expenses.
As the Council has no established reserve, its budget also allocated
$500,000 for reserve funds to be carried into the next fiscal year.
This will be within the maximum permitted by the order of approximately
three fiscal years' expenses. If the assessment rates generate less
money than is anticipated, the Council and the Agricultural Marketing
Service (AMS) will adjust the budget accordingly.
Although these assessment rates will be in effect for an indefinite
period, the Council will continue to meet prior to or during each
fiscal year to recommend a budget of expenses and consider
recommendations for modification of the assessment rates. The dates and
times of Council meetings are available from the Council or USDA.
Council meetings are open to the public, and interested persons may
express their views at these meetings. USDA will evaluate Council
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking will
be undertaken as necessary. The Council's budget for subsequent fiscal
years would be reviewed and, as appropriate, approved by USDA.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of
this rule 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 the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf.
There are approximately 2,500 producers of pecans in the production
area and approximately 250 handlers subject to regulation under the
marketing order. Small agricultural producers are defined by the Small
Business Administration as those having annual receipts less than
$750,000, and small agricultural service firms are defined as those
whose annual receipts are less than $7,500,000 (13 CFR 121.201).
According to information from the National Agricultural Statistics
Service (NASS), the average grower price for pecans during the 2015-16
season was $2.20 per pound, and 254 million pounds were utilized. The
value for pecans in that year totaled $558.8 million ($2.20 per pound
multiplied by 254 million pounds). Taking the total value of production
for pecans and dividing it by the total number of pecan producers
provides a return per grower of $223,520. Using the average price and
utilization information, and assuming a normal distribution, the
majority of growers have annual receipts of less than $750,000.
Evidence presented at the order promulgation hearing indicates an
average handler margin of $0.58 per pound for in-shell pecans for an
estimated handler price of $2.78 per pound. With a total 2015
production of 254 million pounds, the total value of production in 2015
was $706.12 million ($2.78 per pound multiplied by 254 million pounds).
Taking the total value of production for pecans and dividing it by the
total number of pecan handlers provides a return per handler of
$2,824,480. Using this estimated price, the utilization volume, number
of handlers, and assuming a normal distribution, the majority of
handlers have annual receipts of less than $7,500,000. Thus, the
majority of producers and handlers of pecans grown in the states of
Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas,
Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma,
South Carolina, and Texas may be classified as small entities.
This rule establishes the assessment rates to be collected from
handlers for the 2016-17 and subsequent fiscal years. The Council
unanimously recommended 2016-17 expenditures of $6,000,000 and an
assessment rate of $0.03 per pound for improved varieties, $0.02 per
pound for native and seedling varieties, and $0.02 per pound for
substandard pecans handled. The quantity of pecans for the 2016-17 year
is estimated at 260,000,000 pounds, with about 75 percent, or 195
million pounds, of improved varieties and about 25 percent of native
and seedling varieties and substandard pecans. This should provide
adequate assessment income to cover the budgeted expenses and establish
the authorized reserve. Income derived from handler assessments should
be adequate to cover budgeted expenses. As the Council has no
established reserve, its budget also allocated $500,000 for reserve
funds to be carried into the next fiscal year. This will be within the
maximum permitted by the order of approximately three fiscal years'
expenses. If the assessment rates generate less money than is
anticipated, the Council and AMS will adjust the budget accordingly.
The major expenditures recommended by the Council for the 2016-17
fiscal year include $3,850,000 for marketing and promotion, $900,000
for administration, $250,000 for reporting and statistics, and $200,000
for compliance. The Council's budget also includes a reserve of
$500,000.
These are initial budget expenditures and assessment rates for the
order. The order establishes a range of assessment rates that are
permissible during the initial four years of the order. Specifically,
improved varieties shall be initially assessed at $0.02 to $0.03 per
pound and native, seedling, and substandard pecans shall be initially
assessed at $0.01 to $0.02 per pound. Prior to arriving at this budget
and assessment rates, the Council considered information from various
sources, such as the Council's Governance Committee and its Marketing,
Research, and Development Committee. Alternative expenditure levels
were discussed by these groups, based upon the relative value of
various activities to the pecan industry.
The Council also considered different assessment levels. Some
members expressed concern regarding a $0.02 assessment on native,
seedling, and substandard pecans, given the prices of those pecans.
Another member suggested the idea of establishing a lower rate for
substandard pecans. The need to collect sufficient assessments to fund
the start-up costs for the order and the development of a marketing
program was also noted. After consideration and discussion, the Council
unanimously supported the levels as recommended.
A communication from one of the states in the production area that
recommended postponing the

[[Page 43669]]

establishment of an assessment rate was also considered. The Council
determined that waiting until the next fiscal year to establish
assessment rates would be costly in terms of time lost for a program
that had been anticipated by the industry to improve its marketing. The
Council also recognized that the industry had been notified through
multiple outlets of communication of the possible range of assessments
in the order. The Council expressed a preference to establish these
rates and begin its work immediately rather than borrowing funds and
being limited in its operations until the coming fiscal year.
Therefore, these alternatives were rejected, and the Council ultimately
determined that 2016-17 expenditures of $6,000,000 were appropriate and
the recommended assessment rates would generate sufficient revenue to
meet its expenses.
A review of historical information and preliminary information
pertaining to the upcoming production year indicates the grower price
for the 2016-17 season could range between $1.73 and $2.31 per pound
for improved varieties, and between $0.88 and $1.36 per pound for
native and seedling pecans. Therefore, the estimated assessment revenue
for the 2016-17 crop year as a percentage of total grower revenue could
range between 1.3 and 1.7 percent for improved pecans and 1.5 and 2.2
percent for native and seedling pecans.
This action establishes an assessment obligation imposed on
handlers. While assessments impose some additional costs on handlers,
the costs are minimal and uniform on all handlers. Some of the
additional costs may be passed on to producers. However, these costs
would be offset by the benefits derived by the operation of the
marketing order. In addition, the Council's meeting was widely
publicized throughout the pecan industry and all interested persons
were invited to attend the meeting and participate in Council
deliberations on all issues. Like all Council meetings, the November
17, 2016, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the order's information collection requirements have been
previously approved by OMB and assigned OMB No. 0581-0291 ``Pecans
Grown in AL, AR, AZ, CA, FL, GA, KS, LA, MO, MS, NC, NM, OK, SC and
TX.'' No changes in those requirements are necessary as a result of
this action. However, the Council is recommending reporting
requirements, to include information on pecans received, shipped,
exported, or in inventory, which would facilitate the collection of the
assessments. These requirements are being considered under a separate
action. Should any changes to the information collection requirements
become necessary, they would be submitted to OMB for approval.
This rule imposes no additional reporting or recordkeeping
requirements on either small or large pecan handlers. As with all
Federal marketing order programs, reports and forms are periodically
reviewed to reduce information requirements and duplication by industry
and public sector agencies. As noted in the initial regulatory
flexibility analysis, USDA has not identified any relevant Federal
rules that duplicate, overlap, or conflict with this final 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.
A proposed rule concerning this action was published in the Federal
Register on June, 13, 2017 (82 FR 27028). Copies of the proposed rule
were also mailed or sent via facsimile to all known pecan handlers.
Finally, the proposal was made available through the internet by USDA
and the Office of the Federal Register. A 30-day comment period ending
July 13, 2017, was provided for interested persons to respond to the
proposal. Two comments were received during the comment period in
response to the proposal. The commenters included a State Farm Bureau
and Council staff.
Both comments expressed support for finalizing the proposed rule as
issued. Each commenter valued the opportunity to market and promote
pecans. One comment further highlighted the industry's need for product
research for market and economic development. Accordingly, no changes
will be made to the rule as proposed, based on the comments received.
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/rules-regulations/moa/small-businesses. Any questions
about the compliance guide should be sent to Richard Lower at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Council and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because handlers are
aware of this action, which was unanimously recommended by the Council
at a public meeting. The proposed rule provided for a 30-day comment
period and no comments opposing the proposal were received.
Furthermore, the 2016-17 fiscal year ends on September 30, 2017, and
the marketing order requires that the rate of assessment for each
fiscal year apply to all pecans handled during such fiscal year. If
this rule is not effective before September 30, 2017, the Council will
not have sufficient funds to cover expenses it has incurred for the
2016-17 crop year.

List of Subjects in 7 CFR Part 986

Marketing agreements, Pecans, Reporting and recordkeeping
requirements.

For the reasons set forth in the preamble, 7 CFR part 986 is
amended as follows:

PART 986--PECANS GROWN IN THE STATES OF ALABAMA, ARKANSAS, ARIZONA,
CALIFORNIA, FLORIDA, GEORGIA, KANSAS, LOUISIANA, MISSOURI,
MISSISSIPPI, NORTH CAROLINA, NEW MEXICO, OKLAHOMA, SOUTH CAROLINA,
AND TEXAS

0
1. The authority citation for 7 CFR part 986 continues to read as
follows:

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

Sec. Sec. 986.1 through 986.99 [Designated as Subpart A]

0
2. Designate Sec. Sec. 986.1 through 986.99 as subpart A and add a
heading for subpart A to read as follows:

Subpart A--Order Regulating Handling of Pecans

0
3. Add subpart B, consisting of Sec. 986.161, to read as follows:

Subpart B--Administrative Provisions

Sec. 986.161 Assessment rates.

On and after October 1, 2016, assessment rates of $0.03 per pound
for pecans classified as improved, $0.02 per pound for pecans
classified as native and seedling, and $0.02 per pound for pecans
classified as substandard pecans are established.

[[Page 43670]]

Dated: September 11, 2017.
Bruce Summers,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2017-19554 Filed 9-18-17; 8:45 am]
BILLING CODE 3410-02-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.