[Federal Register: August 27, 2008 (Volume 73, Number 167)]
[Proposed Rules]
[Page 50582-50584]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au08-13]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 905
[Docket No. AMS-FV-08-0016; FV08-905-2 PR]
Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida;
Temporary Suspension of Order Provisions Regarding Continuance
Referenda
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule invites comments on a temporary suspension of the
order provision requiring periodic continuance referenda under the
Florida citrus marketing order (order). This rule would suspend for the
current cycle the order requirement that a continuance referendum be
held every sixth year. The suspension is intended to minimize the
confusion that could result from the overlap of the continuance
referendum and another referendum associated with the amendatory
process. It would also allow producers time to evaluate the results of
the amendatory process before voting on the continuance of the order.
DATES: Comments must be received by September 26, 2008.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
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 docket number
and the date and page number of this issue of the Federal Register 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.
FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist,
or Christian D. Nissen, Regional Manager, Southeast Marketing Field
Office, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or
e-mail: Doris.Jamieson@usda.gov or Christian.Nissen@usda.gov.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202)
720-2491, Fax: (202) 720-8938, or e-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing
Agreement No. 84 and Marketing Order No. 905, both as amended (7 CFR
part 905), regulating the handling of oranges, grapefruit, tangerines,
and tangelos grown in Florida, 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 Order 12866.
This proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This proposal will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
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
[[Page 50583]]
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 proposal invites comments on a temporary suspension of the
order provision requiring periodic continuance referenda under the
order. This rule would suspend for the current 6-year cycle the order
requirement that a continuance referendum be held every sixth year. The
suspension is intended to minimize the confusion that could result from
the overlap of the continuance referendum and another referendum
associated with the amendatory process. It would also allow producers
time to evaluate the results of the amendatory process before voting on
the continuance of the order. The Citrus Administrative Committee
(Committee) unanimously recommended this action at a meeting on January
22, 2008.
Section 905.83(c) requires the Secretary to conduct a referendum
every sixth year to ascertain whether continuance of the order is
favored by producers. It has been six years since the last continuance
referendum, and absent a temporary suspension of this provision, the
periodic continuance referendum would need to be scheduled and
conducted this year. Additionally, AMS is currently considering
proposed amendments to the order. The amendment process potentially
entails conducting a referendum to ascertain whether the proposed
amendments are favored by producers.
The Committee is concerned that the overlap of the two processes
could confuse industry members and could diminish voter participation
in one or both of the referenda. The Committee manager and Committee
members have attended several industry meetings and discussions
regarding the proposed amendments and the amendatory process, including
making the industry aware of the potential producer referendum and the
opportunity to vote on the proposed amendments. Without the suspension
of the continuance referendum, growers could be receiving the
continuance referendum ballot in the middle of the amendatory process.
As such, the timing of the ballot's receipt could cause some confusion
among growers as to the scope and purpose of the ballot. Further,
growers receiving the ballot for the amendatory process shortly after
receiving the continuance referendum ballot might disregard the second
ballot. This could negatively affect the voting process and voter
participation.
Consequently, the Committee recommended suspending the continuance
referendum for the current cycle to avoid any potential confusion. This
action would isolate the amendment process and its referendum from the
periodic continuance referendum so that producers would be better
informed regarding the issues each ballot represents and would be more
likely to participate in both referenda. The Committee expects that the
suspension of this cycle for the continuance referendum would minimize
confusion and maximize producer participation.
In addition, the temporary suspension of the continuance referendum
would allow the industry time to operate under any order changes that
may be made as a result of the current amendatory process. This would
give the industry an opportunity to evaluate the effects of any
amendatory changes prior to voting on the continuance of the order.
However, USDA believes that a continuous referendum should be held in
the interim, rather than waiting another full six year cycle. As such,
with the amendatory process scheduled to be completed in 2009, USDA
plans to conduct the next continuance referendum in 2010. The
continuance referendum cycle would then resume as provided in Sec.
905.83(c) in 2014.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), 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
business 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 55 handlers subject to regulation under the
marketing order and approximately 8,000 producers of oranges,
grapefruit, tangerines, and tangelos in the production area. Small
agricultural service firms are defined by the Small Business
Administration (SBA) as those having annual receipts of less than
$6,500,000, and small agricultural producers are defined as those
having annual receipts of less than $750,000 (13 CFR 121.201).
Based on industry and Committee data, the average annual f.o.b.
price for fresh Florida citrus during the 2006-07 season was
approximately $12.25 per \4/5\-bushel carton, and total fresh shipments
were approximately 36.8 million cartons. Using the average f.o.b. price
and shipment data, at least 55 percent of the Florida citrus handlers
could be considered small businesses under SBA's definition. In
addition, based on production and producer prices reported by the
National Agricultural Statistics Service, and the total number of
Florida citrus producers, the average annual producer revenue is less
than $750,000. Therefore, the majority of handlers and producers of
Florida citrus may be classified as small entities.
This rule would suspend for the current cycle the order requirement
that a continuance referendum be held every sixth year. The suspension
is intended to minimize the confusion that could result from the
overlap of the continuance referendum and a referendum associated with
the amendatory processes. It would also allow producers time to
evaluate the results of the amendatory process before voting on
continuance of the order. This rule would temporarily suspend the
provisions of Sec. 905.83(c) which specify the continuance referendum
requirements. The Act authorizes suspension of order provisions.
One alternative to this action would be to conduct the continuance
referendum as scheduled. However, if the continuance referendum was
conducted, the referendum period could overlap with an amendment
referendum, which could cause some voter confusion. The Committee was
concerned that the confusion would lead to decreased grower
participation. Further, the Committee believes that growers need time
to evaluate the effectiveness of the proposed amendments before voting
on continuation of the order. Therefore, this alternative was rejected.
This rule would temporarily suspend the provisions of Sec.
905.83(c) which specify the continuance referendum requirements.
Accordingly, this rule would not impose any additional reporting or
recordkeeping requirements on either small or large Florida citrus
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.
[[Page 50584]]
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.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this rule. In addition, the Committee's
meeting was widely publicized throughout the Florida citrus industry
and all interested persons were invited to attend the meeting and
participate in Committee deliberations on all issues. Like all
Committee meetings, the January 22, 2008, meeting was a public meeting
and all entities, both large and small, were able to express their
views on this issue. Finally, interested persons are invited to submit
comments on this proposed rule, including the regulatory and
informational impacts of this action on small businesses.
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/AMSv1.0/
ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide. Any questions about the compliance guide should be sent to
Jay Guerber at the previously mentioned address in the FOR FURTHER
INFORMATION CONTACT section.
A 30-day comment is provided to allow interested persons to respond
to this proposal. Thirty days is deemed appropriate because this rule
should be implemented as soon as possible since the marketing order
continuance referendum is scheduled for the current season. Further,
the Committee discussed this issue at a public meeting and interested
parties had an opportunity to provide input. All written comments
timely received will be considered before a final determination is made
on this matter.
List of Subjects in 7 CFR Part 905
Grapefruit, Marketing agreements, Oranges, Reporting and
recordkeeping requirements, Tangelos, Tangerines.
For the reasons set forth in the preamble, 7 CFR part 905 is
proposed to be amended as follows:
PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND TANGELOS GROWN IN
FLORIDA
1. The authority citation for 7 CFR part 905 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Sec. 905.83 Termination.
2. Amend paragraph (c) of Sec. 905.83 by:
a. Designating the first sentence ``The Secretary shall conduct a
referendum six years after the effective date of this paragraph and
every sixth year thereafter to ascertain whether continuance of this
part is favored by producers'' as paragraph (c)(1) and the next two
sentences as paragraph (c)(2).
b. Newly designated paragraph (c)(1) is temporarily suspended for
2008.
Dated: August 20, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-19749 Filed 8-26-08; 8:45 am]
BILLING CODE 3410-02-P