[Federal Register Volume 73, Number 167 (Wednesday, August 27, 2008)]
[Proposed Rules]
[Pages 50582-50584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19749]


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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: [email protected] or [email protected].
    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: [email protected].

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=MarketingOrdersSmallBusinessGuide. 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