This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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REGISTER issue of each week.

Rules and Regulations Federal Register

46303 

Vol. 74, No. 173 

Wednesday, September 9, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 905 

[Doc. No. AO–85–A10; AMS–FV–07–0132; 

FV08–905–1] 

Oranges, Grapefruit, Tangerines, and 

Tangelos Grown in Florida; Order 

Amending Marketing Order No. 905 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

marketing order for oranges, grapefruit, 

tangerines, and tangelos grown in 

Florida. The amendments were 

proposed by the Citrus Administrative 

Committee (committee), which is 

responsible for local administration of 

the order. The amendments will modify 

committee representation by 

cooperative entities; allow substitute 

alternates to temporarily represent 

absent members at committee meetings; 

authorize the committee to conduct 

meetings by telephone or other means of 

communication; and authorize the 

committee to conduct research and 

promotion programs, including paid 

advertising, for fresh Florida citrus. The 

amendments are intended to improve 

the operation and administration of the 

order and provide the industry with 

additional tools for the marketing of 

fresh citrus. 

DATES: This rule is effective October 9, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Schmaedick, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1220 

SW. Third Avenue, Room 385, Portland, 

OR 97204; Telephone: (503) 326–2724, 

Fax: (503) 326–7440, or E-mail: 

Melissa.Schmaedick@ams.usda.gov; or 

Laurel May, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., Stop 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 720–2491, Fax: (202) 

720–8938, or E-mail: 

Laurel.May@ams.usda.gov. 

Small businesses may request 

information on this proceeding by 

contacting Jay Guerber, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., Stop 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 720–2491, Fax: (202) 

720–8938, or E-mail: 

Jay.Guerber@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: Prior 

documents in this proceeding: Notice of 

Hearing issued on January 24, 2008, and 

published in the January 29, 2008, issue 

of the Federal Register (73 FR 5130); a 

Recommended Decision issued on 

December 19, 2008, and published in 

the December 24, 2008, issue of the 

Federal Register (73 FR 79028); and a 

Secretary’s Decision and Referendum 

Order issued on April 6, 2009, and 

published in the April 13, 2009, issue of 

the Federal Register (74 FR 16798). 

This action is governed by the 

provisions of sections 556 and 557 of 

Title 5 of the United States Code and is 

therefore excluded from the 

requirements of Executive Order 12866. 

Preliminary Statement 

This final rule was formulated on the 

record of a public hearing held on 

February 12, 2008, in Winter Haven, 

Florida. Notice of this hearing was 

issued on January 24, 2008, and 

published in the January 29, 2008, issue 

of the Federal Register (73 FR 5130). 

The hearing was held to consider the 

proposed amendment of Marketing 

Order No. 905, hereinafter referred to as 

the ‘‘order’’. 

The hearing was held pursuant to the 

provisions of the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act,’’ and the applicable rules of 

practice and procedure governing the 

formulation of marketing agreements 

and marketing orders (7 CFR part 900). 

The Notice of Hearing contained four 

amendment proposals submitted by 

committee. Upon the basis of evidence 

introduced at the hearing and the record 

thereof, the Administrator of AMS on 

December 19, 2008, filed with the 

Hearing Clerk, U.S. Department of 

Agriculture, a Recommended Decision 

and Opportunity to File Written 

Exceptions thereto by January 23, 2009. 

No exceptions were filed. 

A Secretary’s Decision and 

Referendum Order was issued on April 

6, 2009, directing that a referendum be 

conducted during the period May 4 

through May 18, 2009, among growers 

of fresh oranges, grapefruit, tangerines, 

and tangelos to determine whether they 

favored the proposed amendments to 

the order. To become effective, the 

amendments had to be approved by at 

least two-thirds of those producers 

voting or by voters representing at least 

two-thirds of the volume of citrus 

represented by voters in the referendum. 

Three of the proposed amendments 

were favored by 95 percent of the voters, 

representing 99 percent of the volume. 

One amendment was favored by 88 

percent of voters, who represented 49 

percent of the volume. 

The amendments approved by voters 

and included in this order will: 

1. Modify committee representation 

by cooperative committees; 

2. Allow substitute alternates to 

temporarily represent absent members 

at committee meetings; 

3. Authorize the committee to 

conduct meetings by telephone or other 

means of communication; and 

4. Add authority for research and 

promotion programs, including paid 

advertising, for fresh Florida citrus. 

The Agricultural Marketing Service 

(AMS) also proposed to make such 

changes to the order as might be 

necessary to ensure that all of the 

order’s provisions conform to the 

effectuated amendments. AMS proposed 

replacing the word ‘‘he’’ in the second 

sentence of § 905.22(a)(2) with the 

words ‘‘he or she’’ to conform to other 

proposed changes to § 905.22. 

An amended marketing agreement 

was subsequently provided to all fresh 

orange, grapefruit, tangerine, and 

tangelo handlers in the production area 

for their approval. The marketing 

agreement was not approved by 

handlers representing at least 50 percent 

of the volume of fresh oranges, 

grapefruit, tangerines, and tangelos 

handled by all handlers during the 

representative period of August 1, 2007 

through July 31, 2008. 

Small Business Considerations 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (RFA) 


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46304 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

(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 

business subject to such actions so that 

small businesses will not be unduly or 

disproportionately burdened. Marketing 

orders and amendments thereto are 

unique in that they are normally 

brought about through group action of 

essentially small entities for their own 

benefit. 

Small agricultural service firms, 

which include handlers regulated under 

the order, have been defined by the 

Small Business Administration (SBA) 

(13 CFR 121.201) as those having annual 

receipts of less than $7,000,000. Small 

agricultural producers have been 

defined as those with annual receipts of 

less than $750,000. 

There are approximately 48 handlers 

of fresh citrus subject to regulation 

under the order and approximately 

7,700 producers of fresh citrus in the 

regulated area. Information provided at 

the hearing indicates that over 90 

percent of the handlers would be 

considered small agricultural service 

firms. Hearing testimony also suggests 

that the majority of producers would 

also be considered small entities 

according to the SBA’s definition. 

The order regulates the handling of 

fresh citrus grown in the state of 

Florida. Total bearing citrus acreage has 

declined from a peak of approximately 

800,000 acres in 1996–97 to about 

550,000 acres in 2006–07, largely due to 

hurricane damage and the removal of 

diseased citrus trees. Approximately 

7.236 million tons of citrus were 

produced in Florida during the 2006–07 

season—a decline of approximately 6 

million tons compared to the 1996–97 

season. According to evidence provided 

at the hearing, approximately 10 percent 

of Florida citrus is used in the fresh 

market, while the remainder is used in 

the production of processed juice 

products. Generally, 40 percent of 

Florida’s fresh citrus is shipped to 

export markets, including the Pacific 

Rim countries, Europe, and Canada. 

Under the order, outgoing quality 

regulations are established for fresh 

citrus shipments, and statistical 

information is collected. Program 

activities administered by the 

committee are designed to support large 

and small citrus producers and 

handlers. The 18-member committee is 

comprised of both producer and handler 

representatives from the production 

area, as well as a public member. 

Committee meetings where regulatory 

recommendations and other decisions 

are made are open to the public. All 

members are able to participate in 

committee deliberations, and each 

committee member has an equal vote. 

Others in attendance at meetings are 

also allowed to express their views. 

After discussions within the citrus 

industry, the committee considered 

developing its own research and 

marketing promotion programs focusing 

on fresh Florida citrus. An amendment 

study subcommittee was formed to 

explore this idea and other possible 

order revisions. The subcommittee 

developed a list of proposed 

amendments to the order, which was 

then presented to the committee and 

shared with other industry 

organizations. The proposed 

amendments were also posted on the 

committee’s Web site for review by the 

Florida citrus industry at large. 

The committee met to review and 

discuss the subcommittee’s proposals at 

its meeting on May 29, 2007. At that 

time, the committee voted unanimously 

to support the four proposed 

amendments that were forwarded to 

AMS. 

In addition, the hearing to receive 

evidence on the proposed changes was 

open to the public and all interested 

parties were invited and encouraged to 

participate and provide their views. 

The amendments are intended to 

provide the committee and the industry 

with additional flexibility in 

administering the order and producing 

and marketing fresh Florida citrus. 

Record evidence indicates that the 

amendments are intended to benefit all 

producers and handlers under the order, 

regardless of size. All producer and 

handler witnesses supported the 

amendments at the hearing. Some 

witnesses commented on the 

implications of implementing specific 

marketing, research, and development 

programs. In that context, witnesses 

stated that they expected the benefits to 

producers and handlers to outweigh any 

potential costs. 

The amendment reducing the 

required number of cooperative 

producer and cooperative handler seats 

on the committee from three each to two 

each will have no economic impact on 

producers or handlers of any size. The 

number of cooperative entities in the 

industry has diminished considerably 

since the order’s promulgation. 

Reducing the number of cooperative 

seats on the committee at this time will 

reflect the current composition of the 

industry. The reduction will help 

ensure that the interests of all large and 

small producers and handlers, whether 

independent or members of 

cooperatives, are represented 

appropriately during committee 

deliberations. 

Allowing substitute alternates to 

represent absent members at committee 

meetings, will have no adverse 

economic impact on producers or 

handlers of any size. Members who are 

unable to attend committee meetings 

will be allowed to designate available 

alternates to represent them if their own 

alternates are also unavailable in order 

to achieve a quorum. If members are 

unable to designate substitute alternates, 

the committee can designate substitutes 

at the meeting, if necessary to secure a 

quorum. Substitute alternates will be 

required to represent the same group 

affiliation (producer or handler) as the 

absent members and alternates. The 

amendment will allow alternates not 

otherwise representing absent members 

to represent other members at 

committee meetings in order to secure a 

quorum. This will help ensure that 

quorum requirements are met and that 

committee business is addressed in a 

timely manner. 

Adding authority to conduct 

committee meetings by telephone or 

other means of communication is 

expected to benefit producers and 

handlers of all sizes by improving 

committee efficiencies and encouraging 

greater participation in industry 

deliberations. It is not expected to result 

in any significant increased costs to 

producers or handlers. Using modern 

communication technology will allow 

the committee to respond more quickly 

to urgent industry needs and will 

provide greater access to meetings by 

members and other industry 

participants. Greater meeting flexibility 

will make it easier for the committee to 

hold additional meetings where there is 

a need for lengthier discussion and 

consensus building. These changes are 

consistent with current practices in 

other citrus industry settings. 

Adding authority to establish research 

and promotion programs will enable the 

committee to address the specific needs 

of the Florida fresh citrus industry by 

recommending, conducting, and 

funding research projects and 

promotional programs, including paid 

advertising, that focus on the 

production, handling, and marketing of 

fresh citrus. 

Hearing witnesses testified that the 

committee’s assessment rate could 

increase to cover the costs of any newly 

authorized research and promotion 

projects, but that there may be an offset 

by decreases in payments by the 

industry to fund projects through other 

entities. Any increased assessment costs 

would be based on the volume of fresh 


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Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 46305 

citrus shipped by each handler and 

would, therefore, be applied 

proportionately to all handlers. 

The benefits expected to accrue to 

producers and handlers following 

implementation of this amendment 

should outweigh the costs. Witnesses 

advocated the establishment of 

production research programs that 

would assist with the development of 

new varieties and post-harvest handling 

methods to improve the marketability of 

fresh Florida citrus. Marketing programs 

specific to fresh citrus are expected to 

increase consumer demand and sales, 

which should in turn increase returns to 

producers and handlers. Improved 

production and marketing strategies 

developed under the authorized 

programs are expected to outweigh any 

additional costs to the Florida fresh 

citrus industry. In addition, any 

increased costs would be proportional 

to a handler’s size and would not 

unduly or disproportionately impact 

small entities. Witness support for this 

amendment was unanimous at the 

hearing. 

Interested persons were invited to 

present evidence at the hearing on the 

probable regulatory and informational 

impact of the proposed amendments to 

the order on small entities. The record 

evidence is that implementation of the 

amendments will have little or no 

impact on producers and handlers. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this proposed rule. These 

amendments are intended to improve 

the operation and administration of the 

order and to assist in the marketing of 

fresh Florida citrus. 

Paperwork Reduction Act 

Information collection requirements 

for Part 905 are currently approved by 

the Office of Management and Budget 

(OMB), under OMB Number 0581– 

0189—‘‘Generic OMB Fruit Crops.’’ No 

changes in these requirements are 

anticipated as a result of these 

amendments. Should any such changes 

become necessary, they will be 

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. 

AMS is committed to complying with 

the Government Paperwork Elimination 

Act, which requires Government 

agencies in general to provide the public 

the option of submitting information or 

transacting business electronically to 

the maximum extent possible. 

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. 

Civil Justice Reform 

The amendments to Marketing Order 

905 as stated herein have been reviewed 

under Executive Order 12988, Civil 

Justice Reform. They are not intended to 

have retroactive effect. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

no later than 20 days after the date of 

the entry of the ruling. 

Order Amending the Order Regulating 

the Handling of Oranges, Grapefruit, 

Tangerines, and Tangelos Grown in 

Florida 

Findings and Determinations 

The findings and determinations set 

forth hereinafter are supplementary and 

in addition to the findings and 

determinations previously made in 

connection with the issuance of the 

order; and all of 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. 

(a) Findings and Determinations Upon 

the Basis of the Hearing Record. 

Pursuant to the provisions of the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674) 

and the applicable rules of practice and 

procedure effective thereunder (7 CFR 

part 900), a public hearing was held 

upon the proposed amendments to 

Marketing Order No. 905 (7 CFR part 

905), regulating the handling of oranges, 

grapefruit, tangerines, and tangelos 

grown in Florida. 

Upon the basis of the evidence 

introduced at such hearing and the 

record thereof, it is found that: 

(1) The marketing order, as amended, 

and as hereby further amended, and all 

of the terms and conditions thereof, will 

tend to effectuate the declared policy of 

the Act; 

(2) The marketing order, as amended, 

and as hereby further amended, 

regulates the handling of oranges, 

grapefruit, tangerines, and tangelos 

grown in the production area in the 

same manner as, and is applicable only 

to persons in the respective classes of 

commercial and industrial activity 

specified in the marketing order upon 

which hearings have been held; 

(3) The marketing 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 

subdivision of the production area 

would not effectively carry out the 

declared policy of the Act; 

(4) The marketing 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 oranges, grapefruit, 

tangerines, and tangelos grown in the 

production area; and 

(5) All handling of oranges, grapefruit, 

tangerines, and tangelos grown in the 

production area 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 oranges, grapefruit, tangerines, 

and tangelos covered by the order as 

hereby amended) who, during the 

period August 1, 2007 through July 31, 

2008, handled 50 percent or more of the 

volume of such oranges, grapefruit, 

tangerines, and tangelos covered by said 

order, as hereby amended, have not 

signed an amended marketing 

agreement; and, 

(2) The issuance of this amendatory 

order, further amending the aforesaid 

order, is favored or approved by at least 

two-thirds of the producers who 

participated in a referendum on the 

question of approval and who, during 

the period of August 1, 2007 through 

July 31, 2008 (which has been deemed 

to be a representative period), have been 

engaged within the production area in 

the production of such oranges, 

grapefruit, tangerines, and tangelos; and 


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46306 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

(3) In the absence of a signed 

marketing agreement, the issuance of 

this amendatory order is the only 

practical means pursuant to the 

declared policy of the Act of advancing 

the interests of producers of oranges, 

grapefruit, tangerines, and tangelos in 

the production area. 

Order Relative to Handling of Oranges, 

Grapefruit, Tangerines, and Tangelos 

Grown in Florida 

It is therefore ordered, That on and 

after the effective date hereof, all 

handling of oranges, grapefruit, 

tangerines, and tangelos grown in 

Florida shall be in conformity to, and in 

compliance with, the terms and 

conditions of the said order as hereby 

amended as follows: 

The provisions of the proposed order 

further amending the order contained in 

the Secretary’s Decision issued by the 

Administrator on April 6, 2009, and 

published in the Federal Register on 

April 13, 2009 (74 FR 16798), shall be 

and are the terms and provisions of this 

order amending the order and set forth 

in full herein. 

List of Subjects in 7 CFR Part 905 

Grapefruit, Marketing agreements, 

Oranges, Reporting and recordkeeping 

requirements, Tangelos, Tangerines. 

■ For the reasons set forth in the 

preamble, Title 7, Chapter IX of the 

Code of Federal Regulations is amended 

by amending part 905 to read as follows: 

PART 905—ORANGES, GRAPEFRUIT, 

TANGERINES, AND TANGELOS 

GROWN IN FLORIDA 

■ 1. The authority citation for 7 CFR 

part 905 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Amend § 905.22 by revising 

paragraphs (a)(2) and (b)(2) to read as 

follows: 

§ 905.22 Nominations. 

(a) * * * 

(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 two of the nominees 

and their alternates so nominated shall 

be affiliated with a bona fide 

cooperative marketing organization. 

(b) * * * 

(2) Nomination of at least two 

members and their alternates shall be 

made by bona fide cooperative 

marketing organizations which are 

handlers. Nominations for not more 

than six members and their alternates 

shall be made by handlers who are not 

so affiliated. In voting for nominees, 

each handler or his or her authorized 

representative shall be entitled to cast 

one vote, which shall be weighted by 

the volume of fruit by such handler 

during the then current fiscal period. 

■ 3. Revise § 905.23 to read as follows: 

§ 905.23 Selection. 

(a) From the nominations made 

pursuant to § 905.22(a) or from other 

qualified persons, the Secretary shall 

select one member and one alternate 

member to represent District 2 and two 

members and two alternate members 

each to represent Districts 1, 3, 4, and 

5 or such other number of members and 

alternate members from each district as 

may be prescribed pursuant to § 905.14. 

At least two such members and their 

alternates shall be affiliated with bona 

fide cooperative marketing 

organizations. 

(b) From the nominations made 

pursuant to § 905.22(b) or from other 

qualified persons, the Secretary shall 

select at least two members and their 

alternates to represent bona fide 

cooperative marketing organizations 

which are handlers, and the remaining 

members and their alternates to 

represent handlers who are not so 

affiliated. 

■ 4. In § 905.29, redesignate paragraph 

(b) as paragraph (c), and add a new 

paragraph (b) to read as follows: 

§ 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: 

Provided, That such alternate member 

represents the same group affiliation as 

the absent member. If the member is 

unable to designate such an alternate, 

the committee members present may 

designate such alternate. 

* * * * * 

■ 5. Revise paragraph (c) of § 905.34 to 

read as follows: 

§ 905.34 Procedure of committees. 

* * * * * 

(c) The committee may provide for 

meeting by telephone, telegraph, 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. 

* * * * * 

■ 6. Add a new § 905.54 to read as 

follows: 

§ 905.54 Marketing, research and 

development. 

The committee may, with the 

approval of the Secretary, establish, or 

provide for the establishment of, 

projects including production research, 

marketing research and development 

projects, and marketing promotion 

including paid advertising, designed to 

assist, improve, or promote the 

marketing, distribution, and 

consumption or efficient production of 

fruit. The expenses of such projects 

shall be paid by funds collected 

pursuant to § 905.41. Upon conclusion 

of each project, but at least annually, the 

committee shall summarize the program 

status and accomplishments to its 

members and the Secretary. A similar 

report to the committee shall be 

required of any contracting party on any 

project carried out under this section. 

Also, for each project, the contracting 

party shall be required to maintain 

records of money received and 

expenditures, and such shall be 

available to the committee and the 

Secretary. 

Dated: September 2, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–21656 Filed 9–8–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Doc. No. AMS–FV–08–0017; FV08–920–2 

FR] 

Kiwifruit Grown in California; Change 

in Reporting Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule changes the 

reporting requirements currently 

prescribed under the marketing order 

that regulates the handling of kiwifruit 

grown in California. The order is 

administered locally by the Kiwifruit 

Administrative Committee (Committee). 

This rule requires handlers who ship 

100,000 or more trays per season to file 

weekly shipment and price information 

with the Committee. Shipments of 

organic kiwifruit are exempt from this 

requirement. The Committee will use 

this information to prepare its marketing 

policy statements and annual reports 

and to provide timely information to the 

industry to assist them in making 


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