[Federal Register Volume 88, Number 247 (Wednesday, December 27, 2023)]
[Rules and Regulations]
[Pages 89276-89280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28315]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 905

[Doc. No. AMS-SC-21-0054]


Marketing Order for Oranges, Grapefruit, Tangerines, and Pummelos 
Grown in Florida

AGENCY: Agricultural Marketing Service, (USDA).

ACTION: Final rule.

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SUMMARY: This rulemaking amends Marketing Order 905, which regulates 
the handling of oranges, grapefruit, tangerines, and pummelos grown in 
Florida. The amendments reduce the size of the Citrus Administrative 
Committee (Committee), lower the quorum requirements, revise the 
nomination and selection processes, and remove the requirement to 
allocate committee seats based on volume from each district. A new 
section will provide the Committee authority to receive voluntary 
contributions for promotion and research projects. Also, conforming 
changes were made to help align the marketing order with the 
amendments.

DATES: This rule is effective January 26, 2024.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, or Matthew Pavone, Chief, Rulemaking Services Branch, 
Market Development Division, Specialty Crops Program, AMS, USDA, 1400 
Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-8085, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Stop 
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, 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. 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 U.S.C. 601-674), 
hereinafter referred to as the ``Act.'' The Committee locally 
administers the Order and is composed of citrus producers and shippers 
operating within the area of production, and a non-industry member.
    The Agricultural Marketing Service (AMS) is issuing this rule in 
conformance with Executive Orders 12866, 13563, and 14094. Executive 
Orders 12866 and 13563 direct agencies to assess all costs and benefits 
of available regulatory alternatives and, if regulation is necessary, 
to select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. Executive Order 14094 
reaffirms, supplements, and updates Executive Order 12866 and further 
directs agencies to solicit and consider input from a wide range of 
affected and interested parties through a variety of means. This action 
falls within a category of regulatory actions that the Office of 
Management and Budget (OMB) exempted from Executive Order 12866 review.
    In addition, this rule has been reviewed under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
which requires agencies to consider whether their rulemaking actions 
would have Tribal implications. AMS has determined this rule is 
unlikely to have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.
    This rule has also 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 oranges, grapefruit, tangerines, and pummelos 
grown in Florida.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 8c(15)(A) of the 
Act (7 U.S.C. 608c(15)(A)), 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 requesting 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 8c(17) of the Act and the 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. In 
determining whether informal rulemaking is appropriate, AMS is required 
to consider the nature and complexity of the proposed amendments, the 
potential regulatory and economic impacts on affected entities, and any 
other relevant matters.
    AMS has considered these factors and has determined that the 
amendments in this final rule are not unduly complex. The amendments 
are primarily administrative in nature and adapt the Committee's rules 
of practice to better reflect the current state of the Florida citrus 
industry. In addition, as discussed in the Final Regulatory Flexibility 
Analysis section below, the amendments are not expected to impose any 
costs on affected entities.

[[Page 89277]]

    The Committee unanimously recommended the amendments following 
deliberations at a public meeting held on November 19, 2020. This rule 
will amend the Order by reducing the size of the Committee and lowering 
quorum requirements, revising the nomination and selection processes, 
eliminating the requirement to allocate Committee seats based on volume 
from each district, and adding a new section to provide the Committee 
authority to receive voluntary contributions for promotion/research 
projects. Finally, outdated language in the Order was revised and other 
conforming changes were made to align the Order with the amendments.
    A proposed rule soliciting comments on the amendments was published 
in the Federal Register on June 30, 2022 (87 FR 39003). Seven comments 
were received in response to the proposed rule, all of which were in 
support of the proposal. After reviewing the comments, AMS republished 
the proposed rule without change along with the referendum order in the 
Federal Register on January 18, 2023 (88 FR 2862). That document 
directed that a referendum among Florida citrus producers be conducted 
from April 3, 2023, through May 1, 2023, to determine whether they 
favor the proposals. To become effective, the amendments had to be 
approved by either two-thirds of the producers voting in the referendum 
or by those representing at least two-thirds of the volume of citrus 
grown by those voting in the referendum.
    The results of the referendum show that all four amendments were 
favored by over 97 percent of the eligible producers who voted and over 
99 percent of the volume voted favored all the amendments.

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 final rule 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 so that small businesses will not be 
unduly or disproportionately burdened.
    There are approximately 14 handlers of Florida citrus who are 
subject to regulation under the Order and approximately 500 citrus 
producers in the regulated area. At the time the initial regulatory 
flexibility analysis was prepared (88 FR 2862), small agricultural 
service firms were defined by the Small Business Administration (SBA) 
as those having annual receipts of no more than $30,000,000, small 
agricultural producers of orange groves were defined as those having 
annual receipts of no more than $3,500,000, and small agricultural 
producers of citrus (except orange) groves were defined as those having 
annual receipts of no more than $3,750,000 (13 CFR 121.201). The SBA 
subsequently updated these standards and, at the time this final 
regulatory flexibility analysis was prepared, the SBA defined small 
businesses as those having annual receipts of no more than $4,000,000 
for orange producers, $4,250,000 for other citrus producers, and 
$34,000,000 for handlers (13 CFR 121.201). Thus, AMS changed the 
thresholds to reflect the new SBA thresholds in this final rule. The 
changes do not impact AMS's ultimate determination regarding the impact 
of the rule on small entities.
    According to data from the National Agricultural Statistics Service 
(NASS), the weighted average packing house door equivalent price for 
fresh Florida oranges for the 2022-23 season was approximately $21.07 
per box with total shipments of around 1,612,000 boxes. Based on this 
information, the majority of orange handlers have average annual 
receipts of significantly less than $34,000,000 ($21.07 multiplied by 
1,612,000 boxes equals $33,964,840, divided by 14 handlers equals 
$2,426,060 per handler). The weighted average packing house door price 
for other Florida citrus for the 2022-23 season was $38.24 per box with 
total shipments of 1,402,000 boxes. Based on this information, the 
majority of other citrus handlers have average annual receipts of 
significantly less than $34,000,000 ($38.24 multiplied by 1,402,000 
boxes equals $53,612,000, divided by 14 handlers equals $3,829,428.57 
per handler).
    In addition, based on the NASS data, the weighted average orange 
grower price for the 2022-23 season was estimated at $18.90 per box of 
fresh oranges. Based on grower price, shipment data, and the total 
number of Florida orange growers, the average annual grower revenue for 
oranges is well below $4,000,000 ($18.90 multiplied by 1,612,000 boxes 
equals $30,465,823.03, divided by 500 growers equals $60,931.65 per 
grower). The weighted average other citrus grower price for the 2022-23 
season was estimated at $29.08 per box of fresh citrus. Based on grower 
price, shipment data, and the total number of Florida citrus growers, 
the average annual grower revenue for other citrus is well below 
$4,250,000 ($29.08 multiplied by 1,402,000 boxes equals $40,775,768, 
divided by 500 growers equals $81,551.54 per grower). Thus, the 
majority of Florida citrus handlers and growers may be classified as 
small entities.
    AMS has determined that the amendments, as effectuated by this 
final rule, will not have a significant impact on a substantial number 
of small businesses. Rather, large and small entities alike would be 
expected to benefit from the Committee's improved ability to address 
important issues of interest to all on a timely basis. No small 
businesses are unduly or disproportionately burdened.
    The amendments to the Order are necessary because the Florida 
citrus industry has undergone consolidation and crop reduction. 
Decreasing the Committee's size makes it more reflective of today's 
industry and easier to fulfill the quorum requirement. Handlers 
routinely source fruit from across the state, therefore the 
differentiation of districts no longer serves a practical purpose. 
Adding an authority to accept voluntary contributions from domestic 
sources allows the Committee to collaborate with other organizations 
for research/promotional activities. No economic impact is expected 
from these amendments because they will not establish any new 
regulatory requirements on handlers, nor will they have any assessment 
or funding implications. There will be no change in financial costs, 
reporting, or recordkeeping requirements because of these amendments.
    Alternatives to this action were considered by the Committee. 
However, due to changes in the industry, AMS believes the amendments 
are justified and necessary to ensure the Committee's ability to 
locally administer the program.

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. 0581-0189, Fruit Crops. 
No changes in those requirements are necessary because of this action. 
Should any changes become necessary, they would be submitted to OMB for 
approval.
    This final rule does not impose additional reporting or 
recordkeeping requirements on either small or large Florida citrus 
handlers or producers. As with all Federal marketing order programs, 
reports and forms are periodically reviewed to reduce information 
requirements and

[[Page 89278]]

duplication by industry and public-sector agencies. AMS 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 citizen access to Government information 
and services, and for other purposes.
    Like all Committee meetings, the November 19, 2020, Committee 
meeting was widely publicized throughout the production area. Meetings 
are held virtually or in a hybrid style. Participants both large and 
small have a choice whether to attend in person or virtually and can 
participate in the Committee's deliberations on all issues.
    A proposed rule concerning this action was published in the Federal 
Register on June 30, 2022 (87 FR 39003). A copy of the rule was sent 
via email to the Committee Manager for disposal to all Committee 
members and the Florida citrus industry. The proposed rule was made 
available by USDA through the internet and the Office of the Federal 
Register. A 60-day comment period ending August 29, 2022, was provided 
to allow interested persons to respond to the proposals. Seven comments 
were received during the comment period, all of which were in support 
of the proposed amendments. Based on all the information available to 
AMS at this time, including the comments received in response to the 
proposed rule, no substantive changes will be made to the amendments as 
proposed.
    A proposed rule and referendum order was then published on January 
18, 2023 (88 FR 2862). That document directed that a referendum among 
Florida citrus producers be conducted during the period of April 3, 
2023, through May 1, 2023, to determine whether they favored the 
proposed amendments to the Order. To become effective, the amendments 
had to be approved by two-thirds of the producers voting in the 
referendum or by those representing at least two-thirds of the volume 
of citrus grown by those voting in the referendum. The results show 
that over 97 percent of the eligible producers who voted and over 99 
percent of the volume voted favored all four amendments. All of the 
amendments were passed.
    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.

Order Amending the Order Regulating the Handling of Oranges, 
Grapefruit, Tangerines, and Pummelos Grown in Florida

Findings and Determinations 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.
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(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 Marketing Order 905; 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. Marketing Order 905, 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. Marketing Order 905, as amended, and as hereby further amended, 
regulates the handling of oranges, grapefruit, tangerines, and pummelos 
grown in Florida and is applicable only to persons in the respective 
classes of commercial and industrial activity specified in the Order;
    3. Marketing Order 905, 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 marketing orders applicable to 
subdivisions of the production area would not effectively carry out the 
declared policy of the Act;
    4. Marketing Order 905, 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 
citrus produced or packed in the production area; and
    5. All handling of citrus produced or packed in the production 
area, as defined in Marketing Order 905, 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. 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 citrus produced by those voting in a referendum 
on the question of approval and who, during the period of August 1, 
2021, through July 31, 2022, were engaged within the production area in 
the production of such citrus.
    2. The issuance of this amendatory Order advances the interests of 
producers of citrus 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 oranges, grapefruit, tangerines, and pummelos 
grown in Florida shall be in conformity to, and in compliance with, the 
terms and conditions of the said Order as hereby to be amended as 
follows:
    The provisions amending the Order contained in the proposed rule 
and referendum order, published in the Federal Register (88 FR 2862) on 
January 18, 2023, 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 905

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

    For the reasons set forth in the preamble, the Agricultural 
Marketing Service amends 7 CFR part 905 is as follows:

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

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

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


0
2. In Sec.  905.14, revise paragraph (a) introductory text to read as 
follows:


Sec.  905.14  Redistricting.

    (a) The Committee may, with the approval of the Secretary, redefine 
the districts into which the production area is divided or reapportion 
or otherwise change the grower membership of districts, or both: 
Provided, That the membership shall consist of 10 grower members, and 
any such change shall be based, insofar as practicable, upon the

[[Page 89279]]

respective averages for the immediately preceding three fiscal periods 
of:
* * * * *

0
3. In Sec.  905.19, revise paragraph (a) to read as follows:


Sec.  905.19  Establishment and membership.

    (a) There is hereby established a Citrus Administrative Committee 
consisting of 10 grower members. Grower members shall be producers who 
produce within the district for which they are nominated and selected 
to represent. Grower members may be persons who, in addition to being 
producers, are shippers or employees of shippers: Provided, that the 
committee, with the approval of the Secretary, may establish 
alternative qualifications for such grower members. The committee may 
be increased by one non-industry member nominated by the committee and 
selected by the Secretary. The committee, with approval of the 
Secretary, shall prescribe qualifications, term of office, and the 
procedure for nominating the non-industry member.
* * * * *

0
4. Revise Sec.  905.22 to read as follows:


Sec.  905.22  Nominations.

    (a)(1) The Committee shall give public notice of a meeting of 
producers in each district, to be held not later than April 10th of 
even-numbered years, for the purpose of making nominations for grower 
members and alternate grower members. The Committee, with the approval 
of the Secretary, shall prescribe uniform rules to govern such meetings 
and the balloting thereat. The chairman of each meeting shall publicly 
announce at such meeting the names of the persons nominated, and the 
chairman and secretary of each such meeting shall transmit to the 
Secretary their certification as to the number of votes so cast, the 
names of the persons nominated, and such other information as the 
Secretary may request. All nominations shall be submitted to the 
Secretary on or before the 20th day of April.
    (2) Each nominee shall be a producer in the district from which he 
or she is nominated. In voting for nominees, each producer shall be 
entitled to cast one vote for each nominee in each of the districts in 
which he or she is a producer. At least one of the nominees and their 
alternates so nominated shall be affiliated with a bona fide 
cooperative marketing organization.
    (b) Notwithstanding the provisions of paragraph (a) of this 
section, nomination and election of members and alternate members to 
the Committee may be conducted by mail, electronic mail, or other means 
according to rules and regulations recommended by the Committee and 
approved by the Secretary.

0
5. Revise Sec.  905.23 to read as follows:


Sec.  905.23  Selection.

    From the nominations made pursuant to Sec.  905.22(a) or from other 
qualified persons, the Secretary shall select 10 members and 10 
alternates. At least one such member and their alternate shall be 
affiliated with a bona fide cooperative marketing organization.

0
6. In Sec.  905.29, revise paragraph (b) to read as follows:


Sec.  905.29  Inability of members to serve.

* * * * *
    (b) If both a member and his or her respective alternate are unable 
to attend a committee meeting, such member may designate another 
alternate to act in his or her place in order to obtain a quorum. If 
the member is unable to designate such an alternate, the committee 
members present may designate such alternate.
* * * * *

0
7. In Sec.  905.34, revise paragraphs (a), (b), and (c) to read as 
follows:


Sec.  905.34  Procedure of committees.

    (a) Seven members of the committee shall constitute a quorum.
    (b) For any decision or recommendation of the Committee to be 
valid, six concurring votes shall be necessary: Provided, That the 
Committee may recommend a regulation restricting the shipment of 
grapefruit grown in Regulation Area I or Regulation Area II which meets 
the requirements of the Improved No. 2 grade or the Improved No. 2 
Bright grade only upon the affirmative vote of a majority of its 
members present from the regulation area in which such restriction 
would apply; and whenever a meeting to consider a recommendation for 
release of such grade is requested by a majority of the members from 
the affected area, the committee shall hold a meeting within a 
reasonable length of time for the purpose of considering such a 
recommendation. If after such consideration the requesting area 
majority present continues to favor such release for their area, the 
request shall be considered a valid recommendation and transmitted to 
the Secretary. The votes of each member cast for or against any 
recommendation made pursuant to this subpart shall be duly recorded. 
Whenever an assembled meeting is held each member must vote in person.
    (c) The committee may provide for meeting by telephone, or other 
means of communication, and any vote cast at such a meeting shall be 
promptly confirmed in writing: Provided, that if any assembled meeting 
is held, all votes shall be cast in person.
* * * * *

0
8. Add Sec.  905.43 before the undesignated center heading 
``Regulations'' to read as follows:


Sec.  905.43  Contributions.

    The Committee may accept voluntary contributions. Such 
contributions shall be free from any encumbrances by the donor and the 
Committee shall retain complete control of their use.

0
9. Revise Sec.  905.80 to read as follows:


Sec.  905.80  Fruit not subject to regulation.

    (a) Except as otherwise provided in this section, any person may, 
without regard to the provisions of Sec. Sec.  905.52 and 905.53 and 
the regulations issued thereunder, ship any variety for the following 
purposes:
    (1) To a charitable institution for consumption by such 
institution;
    (2) To a relief agency for distribution by such agency;
    (3) To a commercial processor for conversion by such processor into 
canned or frozen products or into a beverage base;
    (4) By U.S. Mail or private courier; or
    (5) In such minimum quantities, types of shipments, or for such 
purposes as the committee with the approval of the Secretary may 
specify.
    (b) No assessment shall be levied on fruit so shipped. The 
committee shall, with the approval of the Secretary, prescribe such 
rules, regulations, or safeguards as it may deem necessary to prevent 
varieties handled under the provisions of this section from entering 
channels of trade for other than the purposes authorized by this 
section. Such rules, regulations, and safeguards may include the 
requirements that handlers shall file applications with the committee 
for authorization to handle a variety pursuant to this section, and 
that such applications be accompanied by a certification by the 
intended purchaser or receiver that the variety will not be used for 
any purpose not authorized by this section.

0
10. Revise Sec.  905.114 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 that portion of the State of 
Florida, which is bounded by the Suwannee River, the Georgia border, 
the Atlantic

[[Page 89280]]

Ocean, and the Gulf of Mexico. This district shall have 10 members and 
10 alternates.
    (b) [Reserved]

0
11. In Sec.  905.120, revise paragraphs (d) and (e) and remove 
paragraphs (f) and (g).
    The revisions read as follows:


Sec.  905.120  Nomination procedure.

* * * * *
    (d) At each meeting each eligible person may cast one vote for each 
of the persons to be nominated to represent the district or group, as 
the case may be.
    (e) Voting may be by written ballot. If written ballots are used, 
all ballots shall be delivered by the chairman or the secretary of the 
meeting to the agent of the Secretary. If written ballots are not used, 
the committee's representative shall deliver to the Secretary's agent a 
listing of each person nominated and a count of the number of votes 
cast for each nominee for grower member and alternate. Said 
representative shall also provide the agent the register of eligible 
voters present at each meeting, a listing of each person nominated, and 
the number of votes cast.

0
12. In Sec.  905.150, revise paragraph (d) to read as follows:


Sec.  905.150  Eligibility requirements for public member and alternate 
member.

* * * * *
    (d) The public member should be nominated by the Citrus 
Administrative Committee and should serve a 2-year term which coincides 
with the term of office of grower members of the Committee.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-28315 Filed 12-26-23; 8:45 am]
BILLING CODE P