[Federal Register Volume 85, Number 174 (Tuesday, September 8, 2020)]
[Rules and Regulations]
[Pages 55359-55363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17576]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 905

[Doc. No. AMS-SC-19-0008; SC19-905-1 FR]


Oranges, Grapefruit, Tangerines, and Pummelos Grown in Florida; 
Establishment of Reporting Requirements and New Information Collection

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule implements a recommendation from the Citrus 
Administrative Committee (Committee) to establish reporting 
requirements under the Federal marketing order for oranges, grapefruit, 
tangerines, and pummelos grown in Florida. This action requires Florida 
citrus handlers who handle citrus grown within the production area to 
register with the Committee.

DATES: Effective October 8, 2020.

FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Marketing 
Specialist, or Christian D. Nissen, Regional Director, Southeast 
Marketing Field Office, Marketing Order and Agreement Division, 
Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: 
(863) 291-8614, or Email: [email protected] or 
[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, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This rule is issued under Marketing Order No. 905, as 
amended (7 CFR part 905), regulating the handling of oranges, 
grapefruit, tangerines, and pummelos grown in Florida. Part 905 
(referred to as the ``Order'') is effective under the Agricultural 
Marketing Agreement Act of 1937, as amended (7

[[Page 55360]]

U.S.C. 601-674), hereinafter referred to as the ``Act.'' The Committee 
locally administers the Order and is comprised of producers and 
handlers of citrus operating within the production area, and a public 
member.
    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.
    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 a marketing order may file with USDA a 
petition stating that the marketing order, any provision of the 
marketing order, or any obligation imposed in connection with the 
marketing order, is not in accordance with law and request a 
modification of the marketing 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 rule establishes handler reporting requirements under the 
Order. This action requires Florida citrus handers to register annually 
with the Committee. This will allow the Committee to verify citrus 
handler information and assist with the administration of the Order, 
including compliance. These changes were unanimously recommended by the 
Committee at a public meeting on November 14, 2019.
    Section 905.7 provides the authority to require handlers to be 
registered with the Committee pursuant to rules recommended by the 
Committee and approved by the Secretary. This action uses this 
authority to establish a new Sec.  905.107 in the administrative 
provisions of the Order, which requires Florida citrus handlers to 
register with the Committee at the beginning of each fiscal year and 
establishes the requirements for registration. It also requires that 
handlers be registered and obtain the Committee's certification as a 
registered handler to ship any citrus outside the production area.
    A final rule published in the Federal Register on March 1, 2016, 
(81 FR 10451) amended the Order to, in part, provide the authority to 
the Committee to require handlers to register with the Committee. Based 
on the formal rulemaking hearing record, the Committee recommended this 
action to provide an accurate and timely record of handlers for the 
purposes of fostering more efficient communication with handlers and 
strengthening the compliance provisions of the Order. The addition of 
this authority, along with the other amendments included in the 2016 
amendatory action, were supported by 96 percent of the growers voting 
and by 99 percent of the volume voted in the amendatory grower 
referendum.
    The Committee met on November 14, 2019, and discussed establishing 
a requirement for handlers to register with the Committee. The issue 
had been raised over the course of previous meetings and Committee 
members recognized the need to maintain an accurate list of handlers in 
operation for the purposes of administering the Order and communicating 
with the industry. The Committee believes requiring handlers to 
register with the Committee at the beginning of each fiscal period will 
provide current and accurate handler information, improve communication 
between the Committee and the handlers, and assist with administering 
the Order, including compliance.
    Currently, the Committee depends on third-party handler data from 
the Florida Department of Agriculture and Consumer Services (FDACS). 
FDACS licenses handlers pursuant to a State program and carries out the 
inspections required by the Order. The Committee contracts with FDACS 
annually to provide handler data and shipment information used to 
calculate handler assessments. However, given the continuing changes in 
the industry, and the timing of when this information is collected by 
FDACS, it is not always current and accurate.
    During the above-mentioned Committee meetings, participants 
discussed that consolidation and other changes within the Florida 
citrus handler community have made it difficult for the Committee to 
maintain accurate information. Implementing the handler registration in 
the Order will assist the Committee in its administration of the Order 
by updating handler contact information each fiscal period.
    In recent years, citrus greening has significantly reduced 
Florida's fresh citrus production. For fiscal year 2012-2013, Committee 
data indicate fresh citrus production totaled 5.9 million boxes and was 
being handled by 45 handler businesses. By fiscal year 2018-2019, fresh 
citrus production dropped to 4.5 million boxes handled by approximately 
20 handlers. These numbers obtained from the Committee represent a 24-
percent decline in fresh production and a 60-percent decline in the 
number of handlers over a 5-year period.
    Due to the rapid consolidation and changing resources within the 
fresh citrus industry, the Committee is concerned that FDACS may, at 
some point, stop collecting and providing handler information. 
Implementing a handler registration requirement will serve as an 
efficient means to obtain accurate and timely handler data and assist 
the Committee in administering the Order by relying on its own 
information and resources.
    In accordance with the registered handler requirements, handlers 
will need to apply for registration with the Committee prior to 
beginning of each fiscal year on forms provided by the Committee. The 
application requires handler information, including: The address for 
each packing facility; contact information (including telephone and 
email if available); and handler business classification as an 
individual, partnership, corporation or cooperative. Handlers will 
submit this form to the Committee no later than August 1 of each fiscal 
period.
    To meet the requirements to become a registered handler, the 
handler's facilities need to be in the production area in permanent, 
nonportable buildings with nonportable equipment for grading, sizing, 
washing and packing Florida-grown citrus. Additionally, each handler 
will be annually inspected by the Committee staff or its authorized 
agents to verify compliance with these requirements. The Committee 
indicated all current handlers already meet these criteria. Committee 
staff will also verify that all assessments, reporting, and any other 
Order requirements have been met by the handler prior to approval of 
the application. If the applicant meets all of the above criteria, the 
applicant will be

[[Page 55361]]

certified as a registered handler and be notified in writing by email 
or mail.
    The Committee also agreed that the registered handler requirement 
will assist with administering compliance under the Order, including 
encouraging the timely payment of assessments. While the Committee and 
industry are not currently experiencing major compliance issues, given 
the ongoing changes to the industry and resource allocation, the 
Committee believes unforeseen compliance issues may arise. The handler 
registration requirement will serve as a preemptive measure for 
compliance and enforcement.
    With this change, the Committee will be able to cancel or deny a 
handler's registration certification, for good cause, with approval of 
the Secretary. Should a handler fail to pay assessments within 90 days 
of the date of invoice, fail to provide required reports, or no longer 
have adequate facilities, the Committee will have the authority to 
cancel a registered handler's certification with the approval of the 
Secretary. Under the Committee's compliance plan, Committee staff 
currently refers cases of nonpayment of assessments to USDA for 
possible enforcement action at 60 days after the invoice is issued. The 
Committee determined that allowing an additional 30 days before 
cancellation of registration will afford handlers sufficient notice and 
opportunity to comply with the assessment requirements. The enforcement 
process for failure to submit required reports is similar.
    Should a handler ship fruit without inspection, the handler's 
certification will be cancelled for a minimum of two weeks. In this 
type of situation where there is no opportunity to correct the 
violation, the Committee determined that a brief cancellation of 
certification was the most appropriate penalty. Handlers could remain 
in business but will not be able to ship regulated citrus out of State. 
The time period of cancellation could be extended, up to the maximum of 
the remainder of the shipping season, with the approval of the 
Secretary, if the violation is more serious or repetitive.
    If a handler's certification is cancelled, the Committee will 
notify the handler in writing outlining the effective date and the 
reason(s) for the cancellation. If the handler corrects the 
deficiencies that resulted in cancellation, and notifies the Committee 
in writing of the correction, the Committee will recertify the handler 
after verification of compliance. If the handler opts to appeal the 
cancellation, the handler may do so by appealing to the Secretary.
    If a handler is not certified as a registered handler, inspection 
certificates issued for lots handled by that handler will include a 
statement to that effect. The inspection certificate for all such lots 
will read ``Fails to meet the requirements of Marketing Order 905 
because the handler is not a registered handler.'' These failing 
certificates will be issued, regardless of the grade, size or container 
of the citrus inspected. The Committee will keep FDACS apprised of each 
handler's certification status.
    The FDACS Office of Agricultural Law Enforcement releases citrus 
shipments for interstate commerce only if the inspection certificates 
indicate the shipments meet the Order's requirements. Thus, handlers 
not certified as a registered handler by the Committee will not be able 
to ship regulated citrus outside of the regulated area. This should 
serve as a strong tool to encourage compliance with the Order 
requirements, helping the industry to avoid potential compliance issues 
moving forward, or to address compliance issues without having to move 
to other enforcement actions.
    Any handler who is denied a registered handler certificate or has a 
registered handler certificate cancelled will be able to appeal to the 
Secretary for consideration. An appeal must be submitted in writing to 
the Secretary within 90 days of the denial. After the appeal request is 
reviewed and considered by the Secretary, the handler will be notified 
of the Secretary's decision in writing.
    This action requires that all Florida citrus handlers register with 
the Committee annually. Establishing this handler registration 
requirement will help facilitate operations under the Order and assist 
with compliance, including ensuring that product is correctly 
inspected, and assessments are paid in a timely manner.

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 
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 the rules issued thereunder, are unique in 
that they are brought through group action of essentially small 
entities acting on their own behalf.
    There are approximately 20 handlers of Florida citrus who are 
subject to regulation under the Order and approximately 500 citrus 
producers in the regulated area. Small agricultural service firms are 
defined by the Small Business Administration (SBA) as those having 
annual receipts of less than $30,000,000, and small agricultural 
producers are defined as those having annual receipts of less than 
$1,000,000 (13 CFR 121.201).
    According to data from the National Agricultural Statistics Service 
(NASS), the industry, and the Committee, the weighted average free on 
board price for fresh Florida citrus for the 2018-19 season was 
approximately $16.69 per carton with total shipments of around 9 
million cartons. Using the number of handlers, the majority of handlers 
have average annual receipts of less than $30,000,000 ($16.69 times 
9,023,704 cartons equals $150,605,620 divided by 20 handlers equals 
$7,530,281 per handler).
    In addition, based on the NASS data, the weighted average grower 
price for the 2018-19 season was estimated at $11.05 per carton of 
fresh citrus. Based on grower price, shipment data, and the total 
number of Florida citrus growers, the average annual grower revenue is 
below $1,000,000 ($11.05 times 9,023,704 million cartons equals 
$99,711,929 divided by 500 growers equals $199,424 per grower). Thus, 
the majority of Florida citrus handlers and growers may be classified 
as small entities.
    This rule establishes handler reporting requirements in the Order. 
This action requires Florida citrus handlers to register annually with 
the Committee. This will allow the Committee to collect information to 
verify who is handling Florida citrus and will be used to assist with 
administering the Order, including compliance. This rule establishes a 
new Sec.  905.107 in Subpart B, Administrative Requirements, of the 
Order using the authority provided in Sec.  905.7.
    It is not anticipated that this change will result in any 
significant cost to the industry. Requiring handlers to register with 
the Committee will impose an increase in the reporting burden on all 
Florida citrus handlers. However, the information requested is readily 
available and will only be required to be submitted once a year. 
Regarding the other requirements to qualify as a registered handler, 
such as nonportable buildings and having the necessary equipment to 
prepare fruit for market, all current handlers already meet these 
requirements. Consequently, no additional cost would be needed to

[[Page 55362]]

comply with the requirements to be a registered handler.
    Should a handler fall out of compliance with Order requirements and 
lose its registered handler status, there could be some cost relative 
to not being able to ship regulated citrus outside of the regulated 
area. However, such a handler will still be able to market fruit within 
the regulated area and be able to address and rectify the problems that 
resulted in the cancellation of its registered handler status. 
Therefore, these costs should be minimal, and only impact handlers that 
have failed to comply with the requirements.
    This action will assist the Committee in administering compliance 
with the Order, including the timely collection of assessments. The 
benefits of this rule are expected to be equally available to all 
citrus growers and handlers, regardless of their size.
    The Committee discussed the alternative of not establishing a 
registered handler requirement but determined that obtaining current 
and accurate handler information and having another enforcement tool 
under the Order are important.
    The Committee considered multiple options regarding the potential 
problem of a handler shipping fruit without inspection. The Committee 
discussed cancelling a handler's certification indefinitely or for the 
rest of the fiscal period. However, the Committee recognized that there 
could be varying degrees of noncompliance with the inspection 
requirement. The Committee determined that the two-week cancellation 
minimum will serve as an appropriate deterrent and afford the Committee 
the flexibility to extend that period up to the maximum of the end of 
the shipping season, if the handler repeatedly violates the inspection 
requirements or any other requirements of the Order.
    The Committee also discussed several options regarding the appeals 
process, ranging from 30 days to appeal to an open-ended process, and 
whether Committee members should review appeals themselves. After 
discussion, the Committee determined that a 90-day period from the date 
of denial or cancellation will allow the handler sufficient time to 
contact the Committee staff and resolve the issue in a timely manner. 
To maintain confidentiality of information, the Committee also agreed 
that members themselves will not be involved in the appeal review 
process. The Committee agreed that an appeal could be made to the 
Secretary. Thus, the alternatives were rejected.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the Order's information requirements have been previously 
approved by OMB and assigned OMB No. 0581-0189 Fruit Crops. This final 
rule establishes one new reporting requirement for handlers and will 
require one new Committee form, which imposes a total annual burden 
increase of 3.3 hours. Therefore, this rule will impose an increase in 
the reporting burden for all handlers. The form has been submitted to 
OMB for approval.
    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 rule. Further, the public comments received 
concerning the proposal did not address the initial regulatory 
flexibility analysis.
    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 2019 Committee meeting was widely publicized throughout the 
citrus industry, and all interested persons were invited to attend the 
meeting and participate in Committee deliberations. Like all Committee 
meetings, the November 14, 2019 meeting was a public meeting, and all 
entities, both large and small, were able to express their views on 
this issue, and both producer and handler Committee members were able 
to assist in the development of the recommended form and procedures 
submitted to USDA.
    A proposed rule concerning this action was published in the Federal 
Register on May 7, 2020 (85 FR 27159). Copies of the proposal were sent 
via email to Committee members and known citrus handlers. Finally, the 
proposal was made available through the internet by USDA and the Office 
of the Federal Register. A 60-day comment period ending July 6, 2020, 
was provided to allow interested persons to respond to the proposal.
    Three comments were received. Although the comments do not 
specifically address the proposed registration of handlers, all three 
comments generally supported the regulation of the industry. Commenters 
stated that it was important for the Committee to regulate growers and 
handlers of Florida citrus, and that doing so would have a positive 
impact on quality. There were no comments regarding the information 
collection burden. Accordingly, no changes will be made to the proposed 
rule.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://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.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule will tend to 
effectuate the declared policy of the Act.

List of Subjects 7 CFR Part 905

    Grapefruit, Marketing agreements, Oranges, Pummelos, Reporting and 
recordkeeping requirements, Tangerines.

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

PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND PUMMELOS 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. Add Sec.  905.107 to read as follows:


Sec.  905.107   Registered handler certification.

    Each handler who handles citrus grown in the production area must 
be certified as a registered handler by the Committee in order to ship 
such regulated citrus outside of the regulated area. A handler who is 
certified as a registered handler is a handler who has adequate 
facilities to meet the requirements for preparing citrus for market, 
obtains inspection on citrus handled, agrees to handle citrus in 
compliance with the Order's grade, size and container requirements, 
pays applicable assessments on a timely basis, submits reports required 
by the Committee, and agrees to comply with other regulatory 
requirements on the handling of citrus grown in the production area.
    (a) Eligibility. Based on the criteria specified in this section, 
the Committee shall determine eligibility for certification as a 
registered handler. The Committee or its authorized agent shall inspect 
a handler's facilities to determine if the facilities are adequate for 
preparing citrus for market. To be

[[Page 55363]]

adequate for such purposes, the facilities must be permanent, 
nonportable buildings located in the production area with equipment 
that is nonportable for the proper washing, grading, sizing and packing 
of citrus grown in the production area.
    (b) Application for certification. Application for certification 
shall be executed by the handler by August 1st of fiscal period and 
filed with the Committee on a form, prescribed by and available at the 
principal office of the Committee, containing the following 
information:
    (1) Business name,
    (2) Address of handling facilities (including telephone, email and 
facsimile number),
    (3) Mailing address (if different from handling facility address),
    (4) Number of years in the citrus business in Florida,
    (5) Type of business entity, and
    (6) Names of senior officers, partners, or principal owners with 
financial interest in the business.
    (c) Determination of certification. If the Committee determines 
from available information that an applicant meets the criteria 
specified in this section, the applicant shall be certified as a 
registered handler and informed by written notice from the Committee. 
Certification is effective for a fiscal period unless the Committee 
determines, based on criteria herein, that cancellation is warranted. 
If certification is denied, the handler shall be informed by the 
Committee in writing, stating the reasons for denial.
    (d) Cancellation of certification. A registered handler's 
certification shall be cancelled by the Committee, with the approval of 
the Secretary, if the handler fails to pay assessments within 90 days 
of the invoice date, fails to provide reports to the Committee, or no 
longer has adequate facilities as described in this section. 
Cancellation of a handler's certification shall be made in writing to 
the handler and shall specify the reason(s) for and effective date of 
the cancellation. Cancellation shall be for a minimum two-week period 
if a handler is found to be shipping without proper inspection. The 
Committee shall recertify the handler's registration at such time as 
the handler corrects the deficiencies which resulted in the 
cancellation and the Committee or its agent verifies compliance. The 
Committee shall notify the handler in writing of its recertification.
    (e) Inspection certification. During any period in which the 
handling of citrus is regulated pursuant to this part, no handler shall 
obtain an inspection certifying that the handler's citrus meets the 
requirements of the Order unless the handler has been certified as a 
registered handler by the Committee. Any person who is not certified as 
a registered handler may receive inspection from the Federal-State 
Inspection Service, however, the inspection certificate shall state 
``Fails to meet the requirements of Marketing Order No. 905 because the 
handler is not a registered handler.''
    (f) Contrary shipping. The Committee may cancel or deny a handler's 
registration if the handler has shipped citrus contrary to the 
provisions of this part. The cancellation or denial of a handler's 
registration shall be effective for a minimum of two weeks and not 
exceed the applicable shipping season as determined by the Committee.
    (g) Appeals. Any handler who has been denied a handler's 
registration or who has had a handler's registration cancelled, may 
appeal to the Secretary, supported by any arguments and evidence the 
handler may wish to offer as to why the application for certification 
or recertification should have been approved. The appeal shall be in 
writing and received at the Specialty Crops Program office in 
Washington, DC, within 90 days of the date of notification of denial or 
cancellation.

Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2020-17576 Filed 9-4-20; 8:45 am]
BILLING CODE 3410-02-P