[Federal Register Volume 78, Number 41 (Friday, March 1, 2013)]
[Rules and Regulations]
[Pages 13777-13781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04787]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 905

[Doc. No. AMS-FV-11-0076; FV11-905-1 FR]


Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida; 
Redistricting and Reapportionment of Grower Members, and Changing the 
Qualifications for Grower Membership on the Citrus Administrative 
Committee

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule redefines districts, reapportions 
representation, and modifies the qualifications for membership on the 
Citrus Administrative Committee (Committee). The Committee is 
responsible for local administration of the Federal marketing order for 
oranges, grapefruit, tangerines, and tangelos grown in Florida (order). 
This final rule reduces the number of districts, reapportions 
representation among the districts, and allows up to four growers who 
are shippers or employees of a shipper to serve as grower members on 
the Committee. These changes adjust grower representation to reflect 
the composition of the industry, provide equitable representation from 
each district, and create the opportunity for more growers to serve on 
the Committee.

DATES: Effective March 4, 2013.

FOR FURTHER INFORMATION CONTACT: Corey E. Elliott, Marketing 
Specialist, or Christian D. Nissen, Regional Director, Southeast 
Marketing Field Office, Marketing Order and Agreement Division, Fruit 
and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 
325-8793, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this

[[Page 13778]]

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 final rule is issued under Marketing 
Order No. 905, 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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect.
    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 not later than 20 days after the date of 
the entry of the ruling.
    This final rule redefines districts, reapportions representation, 
and modifies the qualifications for membership on the Committee. This 
rule reduces the number of districts, reapportions grower 
representation among the districts, and allows up to four growers who 
are shippers or employees of a shipper to serve as grower members on 
the Committee. These changes adjust grower representation to reflect 
the composition of the industry, provide equitable representation from 
each district, and create the opportunity for more growers to serve on 
the Committee. These changes were unanimously recommended by the 
Committee at a meeting on July 14, 2011.
    Section 905.14 of the order provides the authority to redefine the 
districts into which the production area is divided and to reapportion 
or otherwise change the grower membership of the districts to assure 
equitable grower representation on the Committee. This section also 
provides that such changes are to be based, so far as practicable, on 
the averages for the immediately preceding five fiscal periods of: (1) 
The volume of fruit shipped from each district; (2) the volume of fruit 
produced in each district; and, (3) the total number of acres of citrus 
in each district. It also requires that the Committee consider such 
redistricting and reapportionment during the 1980-81 fiscal period and 
only in each fifth fiscal period thereafter. The recommendation of July 
14, 2011, is consistent with the time requirements of this section.
    Section 905.19 provides for the establishment of and membership on 
the Committee, including the number of grower and handler members and 
their corresponding qualifications to serve. In addition, this section 
provides the authority for the Committee, with the approval of the 
Secretary, to establish alternative qualifications for grower members. 
The qualifications in this section specify that grower members cannot 
be shippers or employees of shippers.
    Prior to this change, Sec.  905.114 of the order's administrative 
rules and regulations listed and defined four grower districts within 
the production area. District One included the counties of 
Hillsborough, Pinellas, Pasco, Hernando, Citrus, Sumter, Lake, Orange, 
Seminole, Alachua, Putnam, St. Johns, Flagler, Marion, Levy, Duval, 
Nassau, Baker, Union, Bradford, Columbia, Clay, Gilchrist, and Suwannee 
and County Commissioner's Districts One, Two, and Three of Volusia 
County, and that part of the counties of Indian River and Brevard not 
included in Regulation Area II. District Two included the counties of 
Polk and Osceola. District Three included the counties of Manatee, 
Sarasota, Hardee, Highlands, Okeechobee, Glades, De Soto, Charlotte, 
Lee, Hendry, Collier, Monroe, Dade, Broward, and that part of the 
counties of Palm Beach and Martin not included in Regulation Area II. 
District Four included St. Lucie County and that part of the counties 
of Brevard, Indian River, Martin, and Palm Beach described as lying 
within Regulation Area II, and County Commissioner's Districts Four and 
Five of Volusia County.
    Section 905.114 also specifies the grower representation on the 
Committee from each district. Previously, District One was represented 
by one grower member and alternate; District Two was represented by two 
grower members and alternates; Districts Three and Four were 
represented by three grower members and alternates.
    Since the last redistricting and reapportionment in 1991, total 
citrus acreage has fallen by 24 percent, production has fallen by 23 
percent, and fresh shipments have fallen by 60 percent. Citrus 
production and growing acreage have gradually shifted from the north 
and central parts of the state to the eastern and southwestern growing 
regions following damaging freezes. The industry has also seen an 
overall decrease in acreage and production due to real estate 
development and the impact of several hurricanes. Increased production 
costs associated with replanting, cultivating, and battling citrus 
diseases, such as canker and greening, have also contributed to changes 
in production.
    Considering the numerous changes to the industry, the Committee 
discussed the need to redistrict the production area and reapportion 
grower membership at its meeting on July 14, 2011. During the 
discussion, Committee members agreed that industry conditions have been 
stabilizing, making this an appropriate time to consider redistricting 
and reapportionment. Trees planted to replace acreage lost to disease 
and hurricane damage are now producing, new production practices are 
helping to mitigate the effects of disease, and a weakened housing 
market has reduced development. These factors have all contributed to 
greater stability within the industry.
    In considering redistricting and reapportionment, the Committee 
reviewed the information and recommendations provided by the 
subcommittee tasked with examining this issue. The subcommittee 
reviewed the numbers for acreage, production, and shipments from all 
counties in the production area as required in the order. While this 
information was beneficial in showing how the industry had changed 
since the last time the production area was redistricted, there were 
concerns about how representative these numbers were of the fresh 
citrus industry.
    The majority of Florida citrus production goes to processing for 
juice, and the available numbers for acreage and production by county 
do not delineate between fresh and juice production, making it 
difficult to determine if those numbers reflect fresh production. 
Further, reviewing the available data for fresh shipments also 
presented problems in that the numbers

[[Page 13779]]

were more reflective of handler activity rather than grower activity, 
as fruit from many counties is handled in counties other than where the 
fruit is grown, and often in separate districts from where the fruit is 
grown.
    In an effort to provide numbers reflective of grower production 
utilized for fresh shipments, the subcommittee used the available 
information on trees by variety in each county combined with the 
percentage of fresh production by variety to calculate a fresh 
production estimate for each county. Currently, 3 percent of orange, 44 
percent of grapefruit, and 58 percent of specialty citrus production 
are shipped to the fresh market. Using these estimates, District One 
currently accounts for 9 percent of fresh production; District Two, 13 
percent; District Three, 31 percent; and District Four, 47 percent of 
fresh production.
    Based on the fresh production estimates and other information 
available, the subcommittee recommended reducing the number of 
districts from four to three by combining current Districts One and Two 
into a new District One. Current District Three becomes District Two, 
and District Four becomes District Three. The subcommittee also 
recommended that the nine grower members be reapportioned as follows 
based on the estimates for fresh production: Two grower members and 
alternates for District One, three grower members and alternates for 
District Two, and four grower members and alternates for District 
Three.
    With nine growers serving on the Committee, each member represents 
approximately 11 percent of fresh production. Under the subcommittee 
recommendation, District One, with 22 percent of the fresh production, 
is represented by 22 percent of the grower members and alternates on 
the Committee, with two grower members and alternates. District Two, 
with 31 percent of fresh production, is represented by 33 percent of 
the grower members and alternates on the Committee, with three grower 
members and alternates. District Three, with 47 percent of fresh 
production, is represented by 44 percent of the grower members and 
alternates on the Committee, with four grower members and alternates.
    In discussing the recommendations of the subcommittee, Committee 
members found that the estimated fresh production numbers were a good 
indicator of fresh production and were beneficial when considering how 
the production area should be redistricted and grower membership 
distributed. Based on the new districts and the estimated fresh 
production, the Committee agreed that the subcommittee's 
recommendations evenly allocated grower membership. Consequently, the 
Committee voted unanimously in support of the changes.
    Accordingly, District One includes the counties of Alachua, Baker, 
Bradford, Citrus, Clay, Columbia, Duval, Flagler, Gilchrist, Hernando, 
Hillsborough, Lake, Levy, Marion, Nassau, Orange, Osceola, Pasco, 
Pinellas, Polk, Putnam, Seminole, St. Johns, Sumter, Suwannee, and 
Union and County Commissioner's Districts One, Two, and Three of 
Volusia County, and that part of the counties of Indian River and 
Brevard not included in Regulation Area II. District One is represented 
by two grower members and alternates.
    District Two includes the counties of Broward, Charlotte, Collier, 
Dade, De Soto, Glades, Hardee, Hendry, Highlands, Lee, Manatee, Monroe, 
Okeechobee, Sarasota, and that part of the counties of Palm Beach and 
Martin not included in Regulation Area II. District Two is represented 
by three grower members and alternates.
    District Three includes the County of St. Lucie and that part of 
the counties of Brevard, Indian River, Martin, and Palm Beach described 
as lying within Regulation Area II, and County Commissioner's Districts 
Four and Five of Volusia County. This district has four grower members 
and alternates.
    In addition to discussing redistricting and reapportionment of 
grower representation on the Committee, the Committee also considered 
changes to the grower membership qualifications established under the 
order. When the qualifications for grower membership were established, 
the line between growers and shippers was clearer, with more growers in 
the business of just producing fresh fruit for the fresh market and not 
involved in the shipping aspect of the industry. However, over the 
years, the industry has seen more growers partnering to form shipping 
interests or vertically integrating with shippers.
    This trend began in the 1990s, when the industry was in an 
oversupply situation, and growers were looking for ways to assure their 
fruit was purchased. This consolidation between growers and shippers 
continued as the industry adjusted to changes in production and reacted 
to the pressures of disease, rising land values, hurricanes and 
freezes. Also, the same pressures that have encouraged consolidation 
and vertical integration have prompted many growers to leave the 
industry, further reducing the number of growers solely engaged in 
production.
    Prior to this change, a grower who was affiliated with or was an 
employee of a shipper did not qualify to serve as a grower member on 
the Committee. In discussing this issue, the Committee recognized the 
changes in the makeup of the industry, and the need to revise the 
qualifications for grower membership to reflect these changes. 
Committee members agreed that with growers who are affiliated with 
shippers playing an increasing role in the industry, a change should be 
made to facilitate their participation on the Committee. Several 
Committee members stated that they thought such a change was important, 
but that the majority of grower seats on the Committee should be 
maintained for pure growers, those not affiliated with a shipper.
    To create an opportunity for shipper-affiliated growers to serve on 
the Committee, while maintaining the majority of positions for pure 
growers, it was determined that the grower qualifications for 
membership on the Committee be modified so that up to four grower 
members may be growers affiliated with or employed by shippers, with 
the remaining five seats open only to pure growers who are not 
affiliated with or employed by shippers. Committee members supported 
this change because it does not mandate that the four positions be 
filled by growers affiliated with shippers, but does create the 
opportunity for these types of growers to serve on the Committee. This 
change provides the flexibility to expand grower membership to include 
growers who are affiliated with shippers without limiting the 
opportunity for pure growers to serve.
    The Committee believes this change makes the Committee more 
reflective of the fresh segment of the Florida citrus industry. 
Providing the opportunity for growers affiliated with shippers to serve 
on the Committee helps bring additional perspectives and ideas to the 
Committee, allows another segment of growers to serve on the Committee, 
and creates an increased opportunity for participation by small citrus 
operations. Further, retaining five of the nine grower seats as seats 
for only pure growers helps maintain a balance between grower and 
shipper representation on the Committee.
    With growers who are affiliated with the shipping segment of the 
industry playing an increasing role in the industry and the expectation 
that this segment of growers will continue to increase, the Committee 
believes facilitating their inclusion on the Committee will better 
reflect the current

[[Page 13780]]

industry structure. Widening the pool of growers from which members are 
nominated also creates additional opportunities for growers with 
different backgrounds and perspectives to serve on the Committee. 
Therefore, the Committee unanimously recommended revising grower member 
qualifications to allow up to four growers who are affiliated with or 
employed by shippers to serve as grower members on the Committee.
    The next round of grower nominations will be held in May 2013. In 
order to give the industry ample notice of these changes, and because 
Section 905.14 requires that this announcement occur on or before March 
1 of the then current fiscal year, the modifications need to be in 
effect prior to March 1, 2013, to be utilized in the May 2013 
elections.

Final Regulatory Flexibility Analysis

    Pursuant to 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 final 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 of Florida citrus who are 
subject to regulation under the marketing order and approximately 8,000 
producers of oranges, grapefruit, tangerines, and tangelos in the 
regulated 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 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 2010-11 season was 
approximately $12.16 per \4/5\ bushel carton, and total fresh shipments 
were approximately 30.4 million cartons. Using the average f.o.b. price 
and shipment data, and assuming a normal distribution, 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 final rule reduces the number of districts from four to three, 
reapportions grower representation among the districts, and allows up 
to four growers who are shippers or employees of shippers to serve as 
grower members on the Committee. These changes adjust grower 
representation to reflect the composition of the industry, provide 
equitable representation from each district, and create the opportunity 
for more growers to serve on the Committee. This rule revises Sec.  
905.114 of the regulations regarding grower districts and the allotment 
of members amongst those districts, and adds a new paragraph to Sec.  
905.120 of the rules and regulations to revise grower membership 
qualifications. The authority for these actions is provided in 
Sec. Sec.  905.14 and 905.19 of the order, respectively. These changes 
were unanimously recommended by the Committee at a meeting on July 14, 
2011.
    It is not anticipated that this action will impose any additional 
costs on the industry. This action will have a beneficial impact as it 
more accurately aligns grower districts and reapportions grower 
membership in accordance with the production of fresh Florida citrus. 
This action also creates an opportunity for growers that are affiliated 
with or employees of shippers to serve on the Committee as grower 
members. These changes should provide equitable representation to 
growers on the Committee and increase diversity by allowing more 
growers the opportunity to serve. These changes are intended to make 
the Committee more representative of the current industry. The effects 
of this rule will not be disproportionately greater or less for small 
entities than for larger entities.
    The Committee discussed alternatives to these changes including 
making no changes to the districts or the apportionment of grower 
membership. The Committee recognized that there had been some 
significant changes to the industry since the last time the production 
area was redistricted and members reapportioned in 1991. The Committee 
determined that some changes were needed to make the districts and the 
apportionment of members reflective of the current industry structure. 
In discussing alternatives to changing grower member qualifications, 
the Committee explored making no changes to the qualifications or 
setting more restrictive limits on the alternate qualifications for 
growers affiliated with shippers. However, the Committee agreed that 
changes to the structure of the industry, including increasing vertical 
integration, support making a change to grower membership 
qualifications. Further, the Committee believes allowing up to four 
growers affiliated with or employed by shippers to serve on the 
Committee creates an opportunity for these growers, but maintain a 
majority of seats for pure growers who are not affiliated with 
shippers. Therefore, for the reasons above, these alternatives were 
rejected.
    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 the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189 Generic Fruit Crops. No changes in those 
requirements as a result of this action are necessary. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This final rule requires textual changes to the form FV-163, 
Confidential Background Statement. However, the changes are purely 
cosmetic and do not affect the burden. In light of the redistricting, 
District Four is removed as a check-off option. A statement on the form 
is also reworded to accommodate the revision in grower member 
qualifications. With this change, the OMB currently approved total 
burden for completing FV-163 remains the same. A Justification for 
Change for this change has been submitted to OMB for approval.
    As noted in the initial regulatory flexibility analysis, this final 
rule will not impose any additional reporting or recordkeeping 
requirements on either small or large 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. 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.
    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

[[Page 13781]]

deliberations on all issues. Like all Committee meetings, the July 14, 
2011, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue.
    A proposed rule concerning this action was published in the Federal 
Register on December 12, 2012 (77 FR 73961). Copies of the rule were 
mailed or sent via facsimile to all Committee members and Florida 
citrus handlers. Finally, the rule was made available through the 
Internet by USDA and the Office of the Federal Register. A 30-day 
comment period ending January 11, 2013, was provided to allow 
interested persons to respond to the proposal. No comments were 
received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Jeffrey Smutny at the previously 
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
    After consideration of all relevant matter presented, including the 
information and recommendation submitted by the Committee 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.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because Committee nominations are 
scheduled to be held in the spring, and these changes need to be in 
effect in advance so that industry stakeholders are familiar with the 
new grower districts, reapportionment, and qualifications prior to the 
nomination process. Further, to be effective for the next nomination 
cycle, the order requires that the redistricting and reapportionment 
actions be announced on or before March 1, 2013. Also, a 30-day comment 
period was provided for in the proposed rule.

List of Subjects in 7 CFR Part 905

    Grapefruit, Oranges, Reporting and recordkeeping requirements, 
Tangelos, Tangerines.

    For the reasons set forth in the preamble, 7 CFR part 905 is 
amended as follows:

PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND TANGELOS GROWN IN 
FLORIDA

0
1. The authority citation for 7 CFR part 905 continues to read as 
follows:

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

0
2. Section 905.114 is revised to read as follows:


Sec.  905.114  Redistricting of citrus districts and reapportionment of 
grower members.

    Pursuant to Sec.  905.14, the citrus districts and membership 
allotted each district shall be as follows:
    (a) Citrus District One shall include the counties of Alachua, 
Baker, Bradford, Citrus, Clay, Columbia, Duval, Flagler, Gilchrist, 
Hernando, Hillsborough, Lake, Levy, Marion, Nassau, Orange, Osceola, 
Pasco, Pinellas, Polk, Putnam, Seminole, St. Johns, Sumter, Suwannee, 
and Union and County Commissioner's Districts One, Two, and Three of 
Volusia County, and that part of the counties of Indian River and 
Brevard not included in Regulation Area II. This district shall have 
two grower members and alternates.
    (b) Citrus District Two shall include the counties of Broward, 
Charlotte, Collier, Dade, De Soto, Glades, Hardee, Hendry, Highlands, 
Lee, Manatee, Monroe, Okeechobee, Sarasota, and that part of the 
counties of Palm Beach and Martin not included in Regulation Area II. 
This district shall have three grower members and alternates.
    (c) Citrus District Three shall include the County of St. Lucie and 
that part of the counties of Brevard, Indian River, Martin, and Palm 
Beach described as lying within Regulation Area II, and County 
Commissioner's Districts Four and Five of Volusia County. This district 
shall have four grower members and alternates.

0
3. In Sec.  905.120, add paragraph (g) to read as follows:


Sec.  905.120  Nomination procedure.

* * * * *
    (g) Up to four grower members may be growers who are also shippers, 
or growers who are also employees of shippers.

    Dated: February 25, 2013.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2013-04787 Filed 2-28-13; 8:45 am]
BILLING CODE 3410-02-P