[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: http://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: http://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:
[email protected] or [email protected].
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: [email protected].
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: http://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