[Federal Register Volume 89, Number 68 (Monday, April 8, 2024)]
[Proposed Rules]
[Pages 24393-24396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07329]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 89, No. 68 / Monday, April 8, 2024 / Proposed 
Rules  

[[Page 24393]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 959

[Doc. No. AMS-SC-23-0040]


Onions Grown in South Texas; Redistricting and Reapportionment of 
Committee Membership

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on implementing a 
recommendation from the South Texas Onion Committee (Committee) to 
reestablish the districts in the production area and reapportion 
representation on the Committee. This rulemaking would reduce the 
number of districts from two to one and reapportion membership to 
reflect changes in the industry, provide equitable representation on 
the Committee, and create the opportunity for more producers and 
handlers to serve on the Committee.

DATES: Comments must be received by May 8, 2024.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments can be sent to the Docket 
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. 
Comments can also be sent to the Docket Clerk electronically by Email: 
[email protected] or via the internet at: https://www.regulations.gov. Comments should reference the document number and 
the date and page number of this issue of the Federal Register. 
Comments submitted in response to this proposed rule will be included 
in the record, will be made available to the public, and can be viewed 
at: https://www.regulations.gov. Please be advised that the identity of 
the individuals or entities submitting the comments will be made public 
on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: Delaney Fuhrmeister, Marketing 
Specialist, or Christian D. Nissen, Chief, Southeast Region Branch, 
Market Development 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, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, Fax: (202) 
720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes to amend regulations issued to carry out a marketing order as 
defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing 
Order No. 959, as amended (7 CFR part 959), regulating the handling of 
onions 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 locally administers the Order and is comprised of producers 
and handlers of onions operating within the production area.
    The Agricultural Marketing Service (AMS) is issuing this proposed 
rule in conformance with Executive Orders 12866, 13563, and 14094. 
Executive Orders 12866, 13563, and 14094 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 proposed action falls within a category of regulatory 
actions that the Office of Management and Budget (OMB) exempted from 
Executive Order 12866 review.
    This proposed 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 that this proposed 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 proposed rule has been reviewed under Executive Order 12988--
Civil Justice Reform. This proposed 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 the United States 
Department of Agriculture (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. Such 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 proposed rule would redistrict and reapportion the membership 
of the Committee as prescribed under the Order. This proposal would 
consolidate the current two districts into a single district and 
reapportion all membership on the Committee to the single district. 
These actions reflect changes in the industry and would help provide 
equitable representation on the Committee and create opportunity for 
more producers and handlers to serve on the Committee. Further, these 
changes would better enable Committee staff to conduct nominations and 
ensure

[[Page 24394]]

the appointment of a full Committee, allowing for an easier achievement 
of quorum at assembled meetings. The Committee unanimously recommended 
these changes when meeting on June 8, 2023.
    Section 959.22 provides for the establishment of membership on the 
Committee and states that the Committee shall consist of thirteen 
members, eight of whom shall be producers and five of whom shall be 
handlers. Each member shall have an alternate. Section 959.24 currently 
defines the counties in Texas that make up District No. 1 and District 
No. 2 for the purpose of selecting Committee members. Section 959.26 
specifies that District No. 1 is represented by five producer members 
and alternates and three handler members and alternates, and District 
No. 2 is represented by three producer members and alternates and two 
handler members and alternates.
    Section 959.25 provides the authority for the Committee to 
recommend, with the approval of the Secretary, reapportionment of 
members among districts, and the reestablishment of districts within 
the production area. This section also provides that, in making such 
recommendations, the Committee shall consider shifts in onion acreage 
or production within the districts, the importance of new production in 
relation to existing districts, the equitable relationship of Committee 
membership in districts, economies to result for producers in promoting 
efficient administration due to redistricting or reapportionment, and 
other relevant factors.
    This proposed rule would add two new sections to the rules and 
regulations under the Order using the authority in Sec.  959.25. 
Section 959.110 would reestablish the districts currently identified in 
the Order from two districts to one single district, and Sec.  959.111 
would reapportion the eight producer seats and five handler seats and 
their alternates to the new single district.
    In 2017, the Committee recommended reducing the Committee size from 
34 members to 26 members by removing one producer and one handler from 
each district. The Committee recommended this change due to the 
decrease in the number of onion handlers and producers, and believed 
having a smaller Committee would help fulfill membership and quorum 
requirements. The final rule reducing the Committee size published in 
the Federal Register on March 22, 2019 (84 FR 10665).
    Despite reducing the Committee size in 2019, the Committee 
continued to face difficulty filling member and alternate seats and 
meeting quorum. Consequently, at its meeting on June 8, 2023, the 
Committee reviewed the need to reapportion the membership and/or 
redistrict the production area. In its discussion, the Committee 
considered the distribution of production between the two districts and 
the ongoing difficulty with finding candidates to fill membership 
positions, with Committee staff reporting that this was a particularly 
difficult task in District 2. Given the current state of the industry, 
discussion focused on combining the current two districts into a single 
district representing the entire production area.
    The 2022-2023 fiscal period saw a 39-percent increase in acreage 
planted from the previous year. However, from 2018-2019 to 2022-2023, 
industry production decreased by 28 percent. During this time, the 
percentage of industry acreage has remained stable between the two 
districts, with District 1 accounting for around 85 percent of industry 
acreage and District 2 accounting for around 15 percent. Production 
totals between the two districts also reflect a similar distribution as 
the percentages for acreage.
    Since the reduction in Committee size in 2019, the industry has 
also experienced some additional consolidation, with the number of 
producers and handlers continuing to decline. As with acreage and 
production, there is also a disparity in the number of producers and 
handlers between the districts, with District 1 having considerably 
more producers and handlers (71) than District 2 (9). Consequently, 
District 2 currently has more representation on the Committee than is 
supported by either the volume of production or by the numbers of 
producers and handlers represented.
    In addition, because of the limited number of producers and 
handlers in District 2, it has been difficult to find qualified 
nominees to fill the available member and alternate seats on the 
Committee. In its discussion, the Committee recognized this would 
continue to be a problem, and one that could become more difficult 
should there be any further consolidation in District 2. The Committee 
found that this, when combined with the disparity in volume and 
industry numbers, supports the need to adjust the current membership 
structure to make the Committee more reflective of the industry.
    At the June meeting, there was little interest expressed in 
considering another reduction in the size of the Committee, or for 
further reapportioning the membership between the two districts to 
increase the number of seats available in District 1. Neither of these 
options received a motion. Committee members discussed that, 
historically, onion production in South Texas was separated by two 
distinct seasons with District 1 operating from May to July and 
District 2 from March to May; however, the Committee recognized the 
industry has been experiencing a shift, with District 1 and District 2 
now aligning as a consolidated industry operationally with a single 
season from March to July.
    Considering this shift in the industry, the distribution of 
production, and current Committee representation, the Committee 
recommended combining current Districts 1 and 2 into a new single 
district representing the entire production area. The Committee also 
recommended that all member and alternate seats be reapportioned to the 
reestablished district. By combining both District 1 and District 2 
into a single district, the Committee believes it should enable the 
Committee to fulfill membership and quorum requirements and make the 
Committee more reflective of the industry.
    These changes should also make the representation on the Committee 
more equitable and create the opportunity for more industry members to 
serve. Currently, producers and handlers in District 1 that may be 
interested in serving are not eligible to serve in the seats available 
in District 2. By combining the two districts, the Committee is 
addressing the issue of the limited number of producers and handlers in 
District 2, opening the available seats to all producers and handlers 
within the production area. In considering these changes, Committee 
members agreed producers and handlers in District 2 would still have an 
opportunity to be nominated and elected to serve following this action.
    Accordingly, the Committee voted unanimously to reduce the number 
of districts from two to one, and to reapportion the producer and 
handler membership to the single district. The Committee believes these 
changes would make the representation on the Committee more reflective 
of the South Texas Onion industry and create opportunity for other 
producers and handlers to serve on the Committee.

Initial 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 proposed

[[Page 24395]]

rule on small entities. Accordingly, AMS has prepared this initial 
regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
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 about through group action of essentially small 
entities acting on their own behalf.
    There are 23 handlers of South Texas onions subject to regulation 
under the marketing order and approximately 55 producers of South Texas 
onions in the production area. At the time this analysis was prepared, 
the Small Business Administration (SBA) defined small agricultural 
service firms as those having annual receipts of less than $34,000,000 
(North American Industry Classification System (NAICS) code 115114, 
Postharvest Crop Activities), and small agricultural producers are 
defined as those having annual receipts of less than $3,750,000 (NAICS 
code 111219, Other Vegetable and Melon Farming) (13 CFR 121.201).
    Based on data from Market News and production records from the 
Committee, the average price for South Texas onions during the 2023 
season was approximately $23.25 per 50-pound equivalent with total 
shipments of around 3.02 million 50-pound equivalents shipped. Using 
the average price and shipment data, handlers have average annual 
receipts below $34 million and could be considered small businesses 
under SBA's definition ($23.25 multiplied by 3.02 million 50-pound 
equivalents equals $70,215,000, divided by 23 equals $3.05 million).
    In addition, based on data from the National Agricultural 
Statistics Service and the Committee, the average price producers 
received for South Texas onions during the 2022-2023 season was 
approximately $17 per 50-pound equivalent, with total shipments of 
around 3.02 million 50-pound equivalents. Using the average price 
producers received and shipment information, the number of producers, 
and assuming a normal distribution, the majority of producers have 
estimated average annual receipts significantly less than $3.75 million 
($17 multiplied by 3.02 million 50-pound equivalents equals 
$51,340,000, divided by 55 producers equals $933,455 per producer). 
Therefore, the majority of handlers and producers of South Texas onions 
may be classified as small entities.
    This proposed rule would reduce the number of districts under the 
Order from two districts to one and reapportion the producer and 
handler member and alternate seats to the single district. The 
Committee believes these changes would realign the Committee to reflect 
the composition of the industry, provide for equitable representation, 
and create the opportunity for more producers and handlers to serve on 
the Committee. This rulemaking would establish Sec. Sec.  959.110 and 
959.111 in the rules and regulations under the Order to establish the 
single district and to allot the members and alternates to the single 
district. The authority for this proposed action is provided in Sec.  
959.25. These proposed changes were unanimously recommended by the 
Committee at a meeting on June 8, 2023.
    It is not anticipated that this action would impose any additional 
costs on the industry. Given the division of production, the 
distribution of producers and handlers across the industry, and the 
difficulty in filling member and alternate seats on the Committee, this 
action would have a beneficial impact as it would more accurately align 
the Committee membership to reflect the industry. Redistricting and 
reapportionment of the membership would also make it easier for 
Committee staff to conduct nominations, provide nominees for all seats, 
and readily achieve a quorum when meetings are assembled. These changes 
would save time and operating resources by making it easier to find 
candidates to serve on the Committee, improving the efficiency of 
operations. This would also help avoid the cost associated with travel 
and assembly of a meeting where a quorum is not achieved.
    These changes should also provide for more equitable representation 
on the Committee and increase diversity by allowing more producers and 
handlers the opportunity to serve. These proposed changes are intended 
to make the Committee more representative of the current industry. The 
effects of this rulemaking would not be disproportionately greater or 
less for small entities than for larger entities.
    The Committee discussed alternatives to these changes, including 
making no changes, reapportioning the Committee membership, and further 
reducing the size of the Committee. The Committee recognized there is a 
disparity in the volume of onions produced and the number of producers 
and handlers between the districts. The Committee determined changes 
were needed to make the districts and the apportionment of members more 
reflective of the current industry. Members agreed further reducing the 
Committee size could negatively affect industry participation, and that 
combining the districts rather than reducing the number of seats would 
allow for a wider participation from candidates who would want to serve 
on the Committee. Therefore, for the reasons above, these alternatives 
were rejected.
    The Committee's meetings are widely publicized throughout the South 
Texas onion industry and all interested persons are invited to attend 
the meetings and participate in Committee deliberations on all issues. 
Like all Committee meetings, the June meeting was a public meeting and 
all entities, both large and small, were able to express views on this 
issue. Finally, interested persons are invited to submit comments on 
this proposed rule, including the regulatory impacts of this action on 
small businesses.
    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 would be 
necessary as a result of this proposed rule. Should any changes become 
necessary, they would be submitted to OMB for approval.
    This proposed rule would 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.
    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.
    AMS has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this 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.
    A 30-day comment period is provided to allow interested persons to 
comment

[[Page 24396]]

on this proposed rule. All written comments timely received will be 
considered before a final determination is made on this rulemaking.

List of Subjects in 7 CFR Part 959

    Marketing agreements, Onions, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, the Agriculture 
Marketing Service proposes to amend 7 CFR part 959 as follows:

PART 959--ONIONS GROWN IN SOUTH TEXAS

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

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

0
2. Add Sec.  959.110 to read as follows:


Sec.  959.110  Reestablishment of districts.

    Pursuant to Sec.  959.25, a single district is reestablished to 
include all counties in the production area as follows: the counties of 
Aransas, Atascosa, Bee, Brooks, Calhoun, Cameron, DeWitt, Dimmit, 
Duval, Frio, Goliad, Hidalgo, Jim Hogg, Jim Wells, Karnes, Val Verde, 
Kenedy, Kinney, Kleberg, La Salle, Live Oak, Maverick, McMullen, 
Medina, Nueces, Refugio, San Patricio, Starr, Uvalde, Victoria, Webb, 
Willacy, Wilson, Zavala and Zapata in the State of Texas.
0
3. Add Sec.  959.111 to read as follows:


Sec.  959.111  Reapportionment of Committee membership.

    Pursuant to Sec.  959.25, the Committee membership of eight 
producer members and five handler members and the respective alternates 
is reapportioned to a single district made up of all counties in the 
production area.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2024-07329 Filed 4-5-24; 8:45 am]
BILLING CODE 3410-02-P