[Federal Register Volume 84, Number 56 (Friday, March 22, 2019)]
[Rules and Regulations]
[Pages 10665-10667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05435]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 84, No. 56 / Friday, March 22, 2019 / Rules 
and Regulations  

[[Page 10665]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 959

[Doc. No. AMS-SC-17-0067; SC17-959-4]


Onions Grown in South Texas; Order Amending Marketing Order 959

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends Marketing Order No. 959, which 
regulates the handling of onions grown in South Texas. The amendments 
will reduce the size of the South Texas Onion Committee (Committee) and 
make necessary conforming changes.

DATES: This rule is effective April 22, 2019.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, 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: [email protected].
    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: [email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
finalizes amendments to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This rule is issued under Marketing 
Order No. 959, as amended (7 CFR part 959), regulating the handling of 
onions grown in South Texas. Part 959 (referred to as 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 
Committee, which is responsible for the local administration of the 
Order, is comprised of onion producers and handlers operating within 
the area of production. The applicable rules of practice and procedure 
governing the formulation of Marketing Agreements and Orders (7 CFR 
part 900) authorize amendment of the Order through this informal 
rulemaking action.
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 13563 and 13175. This action falls 
within a category of regulatory actions that the Office of Management 
and Budget (OMB) exempted from Executive Order 12866 review. 
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. This rule is not intended to have retroactive effect. 
This rule shall not be deemed to preclude, preempt, or supersede any 
State program covering onions grown in South Texas.
    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 8c(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 8c(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 amendment, the potential 
regulatory and economic impacts on affected entities, and any other 
relevant matters.
    The Agricultural Marketing Service (USDA-AMS) considered the nature 
and complexity of the proposed amendment, the potential regulatory and 
economic impacts on affected entities, and other relevant matters, and 
determined that amending the Order as proposed by the Committee could 
appropriately be accomplished through informal rulemaking.
    The amendments were unanimously recommended by the Committee 
following deliberations at a public meeting held on June 7, 2017. This 
final rule will amend the Order by reducing the size of the Committee 
from 34 to 26 members. The change will remove one voting producer and 
one voting handler member, and one producer and one handler alternate 
member from each of the two districts. Conforming and clarifying 
changes will also be made to Sec. Sec.  959.24, 959.26, 959.32, and 
Sec. Sec.  959.110 and 959.111 will be removed and reserved.
    A proposed rule and referendum order were issued on July 19, 2018 
and published in the Federal Register on July 30, 2018 (83 FR 36479). 
That document also directed that a referendum among Texas onion growers 
be conducted August 6, 2018 through August 27, 2018 to determine 
whether they favored the proposals. To become effective, the amendment 
had to be approved by either two-thirds of the growers voting in the 
referendum or by those representing at least two-thirds of the volume 
of onions produced by those voting in the referendum. The amendment was 
favored by 100 percent of the growers voting and by 100 percent of the 
volume represented, the

[[Page 10666]]

second of which exceeds the two-thirds volume requirement.
    The amendment in this final rule reduces the size of the Committee 
from 34 to 26 members. The reduction will remove one voting producer 
and one voting handler member, and one producer and one handler 
alternate member from each of the two districts (eight members total). 
As a result, conforming changes need to be made to Order language 
regarding the definition of Districts, the selection of Committee 
nominees and Committee voting procedures. Additionally, two sections 
will be rendered obsolete and will be removed.

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 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 
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 60 producers of onions in the production 
area and approximately 30 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).
    Based on information from the National Agricultural Statistics 
Service, the weighted grower price for South Texas onions during the 
2015-16 season was approximately $12.30 per 50-pound equivalent. 
Furthermore, according to Committee data, total shipments were 
approximately three million 50-pound equivalents for the 2015-16 season 
with a total 2015-16 crop value estimated at $37 million. Dividing the 
crop value by the estimated number of producers (60) yields an 
estimated average receipt per producer of $617,000. This is below the 
$750,000 SBA definition of small producers. The average handler price 
for South Texas onions during the 2015-16 season was approximately 
$14.05 per 50-pound equivalent. Multiplying the average handler price 
by shipment information of 3 million 50-pound equivalent results in an 
estimated handler-level value of $42 million. Dividing this figure by 
the number of handlers (30) yields an estimated average annual handler 
receipts of $1.4 million, which is below the SBA definition of small 
agricultural service firms. Assuming a normal distribution, most 
producers and handlers of South Texas onions may be classified as small 
entities.
    The Committee's proposed amendment to reduce the size of the 
Committee from 34 to 26 members under the Order by removing one voting 
producer and one voting handler member, and one producer and one 
handler alternate member, from each of the two districts was 
unanimously recommended at a meeting on June 7, 2017.
    Over the past 15 years there has been a 31-percent decrease in the 
number of onion producers, and a 34-percent decrease in the number of 
handlers in the production area. Many seats on the Committee remain 
vacant, as it has been challenging to find sufficient nominees. Having 
a smaller size Committee will enable it to fulfill those membership and 
quorum requirements.
    AMS believes this change will serve the needs of the Committee and 
the industry thereby ensuring a more efficient and orderly flow of 
business. No economic impact is expected because amendments would not 
establish any regulatory requirements on handlers, nor does it contain 
any assessment or funding implications. There will be no change in 
financial costs, reporting, or recordkeeping requirements because of 
this action.
    Alternatives to this proposal, including making no changes at this 
time, were considered. However, the Committee believes that given 
reductions in the size of the industry, a smaller Committee size is 
necessary in order to ensure its ability to locally administer the 
program. Reducing the size of the Committee would enable it to fulfill 
membership and quorum requirements, thereby ensuring a more efficient 
and orderly flow of business.

Paperwork Reduction Act

    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. 0581-0178 (Vegetable 
and Specialty Crops). No changes in those requirements are necessary as 
a result of this action. Should any changes become necessary, they 
would be submitted to OMB for approval.
    This amendment will not impose any additional reporting or 
recordkeeping requirements on either small or large South Texas onion 
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. 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 citizens to access Government information 
and services, and for other purposes.
    The Committee's meeting was widely publicized throughout the South 
Texas onion 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 June 7, 
2017, meeting was public, and all entities, both large and small, were 
encouraged to express their views on the proposal.
    A proposed rule concerning this action was published in the Federal 
Register on March 1, 2018 (83 FR 8804). Copies of the rule were mailed 
or sent via facsimile to all Committee members and South Texas onion 
handlers. The proposed rule was made available through the internet by 
USDA and the Office of the Federal Register. A 60-day comment period 
ending April 30, 2018, was provided to allow interested persons to 
respond to the proposal.
    Although two comments were received, no changes were made to the 
proposed amendments.
    A proposed rule and referendum order was then issued on July 19, 
2018 and published in the Federal Register on July 30, 2018 (83 FR 
36476). That document directed that a referendum among Texas growers be 
conducted during the period of August 6, 2018 through August 27, 2018 
to determine whether they favored the proposed amendment to the Order. 
To become effective, the amendment had to be approved by at least two-
thirds of the growers voting, or two-thirds of the volume of Texas 
onions represented by voters in the referendum. The amendment was 
favored by 100 percent of the growers voting and by 100 percent of the 
volume represented, the second of which exceeds the two-thirds volume 
requirement.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may

[[Page 10667]]

be viewed at: http://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.

Order Amending the Order Regulating the Handling of Onions Grown in 
South Texas 1
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    \1\ This order shall not become effective unless and until the 
requirements of Sec.  900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
---------------------------------------------------------------------------

Findings and Determinations

    (a) Findings and Determinations Upon the Basis of the Rulemaking 
Record.
    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the 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 Order, as amended, and as hereby further amended, and all 
the terms and conditions thereof, will tend to effectuate the declared 
policy of the Act;
    2. The Order, as amended, and as hereby further amended, regulates 
the handling of onions grown in South Texas in the same manner as, and 
is applicable only to, persons in the respective classes of commercial 
and industrial activity specified in the Order;
    3. The Order, as amended, and as hereby further 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 Order, as amended, and as hereby further 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 
onions produced in the production area; and
    5. All handling of onions produced or packed in the production area 
as defined in the Order is in the current of interstate or foreign 
commerce or directly burdens, obstructs, or affects such commerce.
    (b) Determinations.
    It is hereby determined that:
    1. Handlers (excluding cooperative associations of producers who 
are not engaged in processing, distributing, or shipping of walnuts 
covered under the Order) who during the period August 1, 2016, through 
July 31, 2017, handled not less than 50 percent of the volume of such 
onions covered by said Order, as hereby amended, have not signed an 
amended marketing agreement; and
    2. The issuance of this amendatory Order, amending the aforesaid 
Order, is favored or approved by producers representing at least two-
thirds of the volume of onions produced by those voting in a referendum 
on the question of approval and who, during the period of August 1, 
2016, through July 31, 2017, have been engaged within the production 
area in the production of such onions.
    3. The issuance of this amendatory Order advances the interests of 
growers of onions in the production area pursuant to the declared 
policy of the Act.

Order Relative to Handling

    It is therefore ordered, that on and after the effective date 
hereof, all handling of onions grown in South Texas shall be in 
conformity to, and in compliance with, the terms and conditions of the 
said Order as hereby proposed to be amended as follows:
    The provisions amending the Order contained in the proposed rule 
issued by the Administrator on February 23, 2018 and published in the 
Federal Register (83 FR 8804) on March 1, 2018, will be and are the 
terms and provisions of this order amending the Order and are set forth 
in full herein.

List of Subjects in 7 CFR Part 959

    Marketing agreements, Onions, Reporting and recordkeeping 
requirements.

    Dated: March 13, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.

    For the reasons set forth in the preamble, 7 CFR part 959 is 
amended as follows:

PART 959--ONIONS GROWN IN SOUTH TEXAS

0
1. The authority citation for 7 CFR part 959 continues to read as 
follows:

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


0
2. Revise Sec.  959.22 to read as follows:


Sec.  959.22  Establishment and membership.

    The South Texas Onion Committee, consisting of thirteen members, 
eight of whom shall be producers and five of whom shall be handlers, is 
hereby established. For each member of the Committee there shall be an 
alternate. Producer members and alternates shall not have a proprietary 
interest in or be employees of a handler organization.

0
3. Revise Sec.  959.24 to read as follows:


Sec.  959.24  Districts.

    To determine a basis for selecting Committee members, the following 
districts of the production area are hereby established:
    (a) District No. 1. (Coastal Bend-Lower Valley) The Counties of 
Victoria, Calhoun, Goliad, Refugio, Bee, Live Oak, San Patricio, 
Aransas, Jim Wells, Nueces, Kleberg, Brooks, Kenedy, Duval, McMullen, 
Cameron, Hidalgo, Starr, and Willacy in the State of Texas.
    (b) District No. 2. (Laredo-Winter Garden) The Counties of Zapata, 
Webb, Jim Hogg De Witt, Wilson, Atascosa, Karnes Val Verde, Frio, 
Kinney, Uvalde, Medina, Maverick, Zavala, Dimmit, and La Salle in the 
State of Texas.

0
4. Revise Sec.  959.26 to read as follows:


Sec.  959.26  Selection.

    The Secretary shall select members and respective alternates from 
districts established pursuant to Sec.  959.24 or Sec.  959.25. 
Selections shall be as follows:
    (a) District No. 1. Five producer members and alternates; three 
handler members and alternates.
    (b) District No. 2. Three producer members and alternates; two 
handler members and alternates.

0
5. Amend Sec.  959.32 by revising paragraph (a) to read as follows:


Sec.  959.32  Procedure.

    (a) Nine members of the Committee shall be necessary to constitute 
a quorum. Seven concurring votes, or two-thirds of the votes cast, 
whichever is greater, shall be required to pass any motion or approve 
any Committee action. At assembled meetings all votes shall be cast in 
person.
* * * * *


Sec. Sec.  959.110 and 959.111   [Removed and Reserved]

0
6. Remove and reserve Sec. Sec.  959.110 and 959.111.

[FR Doc. 2019-05435 Filed 3-21-19; 8:45 am]
 BILLING CODE 3410-02-P