[Federal Register Volume 83, Number 146 (Monday, July 30, 2018)]
[Proposed Rules]
[Pages 36476-36479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15793]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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. 83, No. 146 / Monday, July 30, 2018 / 
Proposed Rules

[[Page 36476]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 959

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


Onions Grown in South Texas; Proposed Amendments to Marketing 
Order 959 and Referendum Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and referendum order.

-----------------------------------------------------------------------

SUMMARY: This rulemaking proposes amendments to Marketing Order No. 
959, which regulates the handling of onions grown in South Texas. The 
proposed amendments would reduce the size of the South Texas Onion 
Committee (Committee) and make conforming and clarifying amendments as 
needed.

DATES: The referendum will be conducted from August 6, 2018 through 
August 27, 2018. The representative period for the referendum is August 
1, 2016 through July 31, 2017.

ADDRESSES: Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, 
DC 20250-0237.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, or Julie Santoboni, Rulemaking Branch Chief, 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: 
<a href="/cdn-cgi/l/email-protection#1651736479787f7b793847637f787978736556777b65386365727738717960"><span class="__cf_email__" data-cfemail="7b3c1e091415121614552a0e121514151e083b1a1608550e081f1a551c140d">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#662c130a0f034835070812090409080f26070b15481315020748010910"><span class="__cf_email__" data-cfemail="8dc7f8e1e4e8a3deece3f9e2efe2e3e4cdece0fea3f8fee9eca3eae2fb">[email protected]</span></a>.
    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: <a href="/cdn-cgi/l/email-protection#3c6e555f545d4e581270534b594e7c5d514f12494f585d125b534a"><span class="__cf_email__" data-cfemail="61330802090013054f2d0e16041321000c124f141205004f060e17">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This proposal, pursuant to 5 U.S.C. 553, 
proposes amendments to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposal is issued under 
Marketing Order No. 959, as amended (7 CFR part 959), regulating the 
handling of onions grown in South Texas. Part 959 (referred to as the 
``Order'') is effective under the Agricultural Marketing Agreement Act 
of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the 
``Act.'' The Committee locally administers the Order and is comprised 
of onion producers and handlers operating within the area of 
production.
    The Department of Agriculture (USDA) is issuing this proposed 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 proposed 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 proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule shall not be deemed to preclude, preempt, or supersede any 
State program covering onions grown in South Texas.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. A 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed no later than 20 days after the date of 
entry of the ruling.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) amended section 8c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of 
section 8c(17) of the Act and additional supplemental rules of practice 
authorize the use of informal rulemaking (5 U.S.C. 553) to amend 
Federal fruit, vegetable, and nut marketing agreements and orders. USDA 
may use informal rulemaking to amend marketing orders based on the 
nature and complexity of the proposed amendment, the potential 
regulatory and economic impacts on affected entities, and any other 
relevant matters.
    AMS has considered these factors and has determined that the 
amendments proposed are not unduly complex and the nature of the 
proposed amendments is appropriate for utilizing the informal 
rulemaking process to amend the Order.
    The proposed amendments were unanimously recommended by the 
Committee following deliberations at a public meeting held on June 7, 
2017. The proposal would amend the Order by reducing the size of the 
Committee from 34 to 26 members. The change would remove one voting 
producer and one voting handler member, and one producer and one 
handler alternate member from each of the two districts. Conforming and 
clarifying changes would also be made to Sec. Sec.  959.24, 959.26, 
959.32, and Sec. Sec.  959.110 and 959.111 would be removed and 
reserved.
    A proposed rule soliciting comments on the proposed amendment was 
issued on February 23, 2018 and published in the Federal Register on 
March 1, 2018 (83 FR 8804). Two opposing comments were received. AMS 
will conduct a producer referendum to determine support for the 
proposed amendments. If appropriate, a final rule will then be issued 
to effectuate the amendment if it is favored by producers in the 
referendum.
    The Committee's recommended amendments would amend the Order by 
reducing the size of the Committee from 34 to 26 members. The reduction 
would

[[Page 36477]]

remove one voting producer and one voting handler member, and one 
producer and one handler alternate member from each of the two 
districts (eight members total).

Proposal--Reduce Committee Size

    Section 959.22 provides that the Committee consists of seventeen 
members, ten of whom shall be producers and seven of whom shall be 
handlers. For each member of the Committee there shall be an alternate.
    This proposal would amend Sec.  959.22 by reducing the size of the 
Committee from 34 to 26 members. The Committee size is based on 
membership per district. The Order initially established five 
districts, which were reestablished as two districts in Sec.  959.110. 
Section 959.111 reapportioned the 34 Committee members between the two 
districts so that District 1 was comprised of 20 members and alternates 
and District 1 was comprised of 14 members and alternates. However, due 
to contractions in the size of the industry, the Committee has had 
difficulties finding nominees to fill positions on the Committee. The 
change would remove one voting producer and one voting handler member, 
and one producer and handler alternate member from each of the two 
districts (eight members total).
    This proposed action is necessary to adjust the number of handlers 
and producers on the Committee to reflect industry consolidation. There 
has been a decrease in the number of onion producers and handlers over 
the past 15 years. The current structure of the Committee requires 34 
members, with half the members elected on biennial terms. Many seats 
remain vacant, as finding sufficient members to nominate has been 
challenging. Having a smaller size committee would enable it to fulfill 
membership and quorum requirements, thereby ensuring a more efficient 
and orderly flow of business.
    For the reasons stated above, it is proposed that Sec.  959.22 be 
modified to reduce the size of the Committee from 34 to 26 members. 
Conforming and clarifying changes would also be made to Sec. Sec.  
959.24, 959.26, 959.32, and Sec. Sec.  959.110 and 959.111 would be 
removed and reserved.

Final Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the 
economic impact of this action on small entities. Accordingly, AMS has 
prepared this final regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 60 producers of onions in the production 
area and approximately 30 handlers subject to regulation under the 
marketing order. Small agricultural producers are defined by the Small 
Business Administration as those having annual receipts less than 
$750,000, and small agricultural service firms are defined as those 
whose annual receipts are less than $7,500,000 (13 CFR 121.201).
    Based on information from the National Agricultural Statistics 
Service, the weighted grower price for South Texas onions during the 
2015-16 season was approximately $12.30 per 50-pound equivalent. 
Furthermore, according to Committee data, total shipments were 
approximately three million 50-pound equivalents for the 2015-16 season 
with a total 2015-16 crop value estimated at $37 million. Dividing the 
crop value by the estimated number of producers (60) yields an 
estimated average receipt per producer of $617,000. This is below the 
$750,000 SBA definition of small producers. The average handler price 
for South Texas onions during the 2015-16 season was approximately 
$14.05 per 50-pound equivalent. Multiplying the average handler price 
by shipment information of 3 million 50-pound equivalent results in an 
estimated handler-level value of $42 million. Dividing this figure by 
the number of handlers (30) yields an estimated average annual handler 
receipts of $1.4 million, which is below the SBA definition of small 
agricultural service firms. Assuming a normal distribution, most 
producers and handlers of South Texas onions may be classified as small 
entities.
    The amendment recommended by the Committee would reduce the size of 
the Committee from 34 to 26 members under the Order. The reduction 
would remove one voting producer and one voting handler member, and one 
producer and one handler alternate member from each of the two 
districts.
    The Committee's proposed amendment was unanimously recommended at a 
meeting on June 7, 2017. If this proposal is approved in the 
referendum, there would be no direct financial effects on producers or 
handlers. Over the past 15 years there has been a 31-percent decrease 
in the number of onion producers, and a 34-percent decrease in the 
number of handlers in the production area. Many seats on the Committee 
remain vacant, as it has been challenging to find sufficient nominees. 
Having a smaller size Committee should enable it to fulfill those 
membership and quorum requirements.
    AMS believes this change will serve the needs of the Committee and 
the industry thereby ensuring a more efficient and orderly flow of 
business. No economic impact is expected if the amendment is approved 
because it would not establish any regulatory requirements on handlers, 
nor does it contain any assessment or funding implications. There would 
be no change in financial costs, reporting, or recordkeeping 
requirements if this proposal is approved.
    Alternatives to this proposal, including making no changes at this 
time, were considered. However, the Committee believes that given 
reductions in the size of the industry, a smaller Committee size is 
necessary in order to ensure its ability to locally administer the 
program. Reducing the size of the Committee would enable it to fulfill 
membership and quorum requirements, thereby ensuring a more efficient 
and orderly flow of business.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0178 (Vegetable 
and Specialty Crops). No changes in those requirements are necessary 
because of this action. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This proposed rule would impose no 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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this action.

[[Page 36478]]

    The Committee's meeting was widely publicized throughout the South 
Texas onion production area. All interested persons were invited to 
attend the meeting and encouraged to participate in Committee 
deliberations on all issues. Like all Committee meetings, the June 7, 
2017, meeting was public, and all entities, both large and small, were 
encouraged to express their views on the proposal.
    A proposed rule concerning this action was published in the Federal 
Register on March 1, 2018 (83 FR 8804). Copies of the rule were mailed 
or sent via facsimile to all Committee members and South Texas onion 
handlers. Finally, the proposed rule was made available through the 
internet by USDA and the Office of the Federal Register. A 60-day 
comment period ending April 30, 2018, was provided to allow interested 
persons to respond to the proposal.
    Two comments were received. The first comment suggested that 
decreasing the Committee size was an inefficient use of government 
resources and those resources should be allocated to other more 
important initiatives. The second comment contended that having more 
members on the Committee might lead to better discussions.
    The reduction in Committee size was recommended by representatives 
responsible for locally administering the Order and representing the 
industry's best interest. As stated above, because of a consolidation 
within the industry, Committee seats have been left vacant. Without a 
full Committee or enough members to meet quorum requirements, Committee 
meetings are ineffective and an inefficient use of Committee and 
industry resources. Therefore, this amendment should increase efficient 
use of resources. Additionally, AMS is pursuing this amendment through 
informal rulemaking as opposed to formal rulemaking. This will spare 
resources being expended on a public hearing.
    In response to the second comment, all Committee meetings are open 
to public and industry attendance. Attendees have an opportunity to ask 
questions and provide comments. Therefore, discussion is not limited by 
the number of Committee members.
    Because of the above, no changes will be made to the proposed 
amendment based on the comments received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions 
about the compliance guide should be sent to Richard Lower at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.

Findings and Conclusions

    The findings and conclusions and general findings and 
determinations included in the proposed rule set forth in the March 1, 
2018, issue of the Federal Register are hereby approved and adopted.

Marketing Order

    Annexed hereto and made a part hereof is the document entitled 
``Order Amending the Order Regulating the Handling of Onions Grown in 
South Texas.'' This document has been decided upon as the detailed and 
appropriate means of effectuating the foregoing findings and 
conclusions. It is hereby ordered, that this entire proposed rule be 
published in the Federal Register.

Referendum Order

    It is hereby directed that a referendum be conducted in accordance 
with the procedure for the conduct of referenda (7 CFR part 900.400-
407) to determine whether the annexed order amending the Order 
regulating the handling of onions grown in South Texas is approved by 
growers, as defined under the terms of the Order, who during the 
representative period were engaged in the production of onions in the 
production area. The representative period for the conduct of such 
referendum is hereby determined to be August 1, 2016 through July 31, 
2017.
    The agents designated by the Secretary to conduct the referendum 
are Doris Jamieson and Christian D. Nissen, Southeast Marketing Field 
Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or 
Email: <a href="/cdn-cgi/l/email-protection#1b5f7469726835517a76727e6874755b7a7668356e687f7a357c746d"><span class="__cf_email__" data-cfemail="581c372a312b76123935313d2b37361839352b762d2b3c39763f372e">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#5112392338222538303f7f1f382222343f11303c227f242235307f363e27"><span class="__cf_email__" data-cfemail="387b504a514b4c5159561676514b4b5d567859554b164d4b5c59165f574e">[email protected]</span></a>, 
respectively.

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

Findings and Determinations

    The findings hereinafter set forth are supplementary to the 
findings and determinations which were previously made in connection 
with the issuance of the Order; and all said previous findings and 
determinations are hereby ratified and affirmed, except insofar as such 
findings and determinations may be in conflict with the findings and 
determinations set forth herein.
    1. The Order, as amended, and as hereby proposed to be further 
amended, and all the terms and conditions thereof, would tend to 
effectuate the declared policy of the Act;
    2. The Order, as amended, and as hereby proposed to be further 
amended, regulates the handling of onions grown in South Texas in the 
same manner as, and is applicable only to, persons in the respective 
classes of commercial and industrial activity specified in the Order;
    3. The Order, as amended, and as hereby proposed to be further 
amended, is limited in application to the smallest regional production 
area which is practicable, consistent with carrying out the declared 
policy of the Act, and the issuance of several orders applicable to 
subdivisions of the production area would not effectively carry out the 
declared policy of the Act;
    4. The Order, as amended, and as hereby proposed to be further 
amended, prescribes, insofar as practicable, such different terms 
applicable to different parts of the production area as are necessary 
to give due recognition to the differences in the production and 
marketing of onions produced in the production area; and
    5. All handling of onions produced or packed in the production area 
as defined in the Order is in the current of interstate or foreign 
commerce or directly burdens, obstructs, or affects such commerce.

Order Relative to Handling

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

List of Subjects in 7 CFR Part 959

    Onions, Marketing agreements, Reporting and recordkeeping 
requirements.


[[Page 36479]]


     Dated: July 19, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.

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

PART 959--ONIONS GROWN IN SOUTH TEXAS

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

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

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


Sec.  959.22  Establishment and membership.

    The South Texas Onion Committee, consisting of thirteen members, 
eight of whom shall be producers and five of whom shall be handlers, is 
hereby established. For each member of the Committee there shall be an 
alternate. Producer members and alternates shall not have a proprietary 
interest in or be employees of a handler organization.
0
3. Revise Sec.  959.24 to read as follows:


Sec.  959.24  Districts.

    To determine a basis for selecting Committee members, the following 
districts of the production area are hereby established:
    (a) District No. 1: (Coastal Bend-Lower Valley) The Counties of 
Victoria, Calhoun, Goliad, Refugio, Bee, Live Oak, San Patricio, 
Aransas, Jim Wells, Nueces, Kleberg, Brooks, Kenedy, Duval, McMullen, 
Cameron, Hidalgo, Starr, and Willacy in the State of Texas.
    (b) District No. 2: (Laredo-Winter Garden) The Counties of Zapata, 
Webb, Jim Hogg De Witt, Wilson, Atascosa, Karnes Val Verde, Frio, 
Kinney, Uvalde, Medina, Maverick, Zavala, Dimmit, and La Salle in the 
State of Texas.
0
4. Revise Sec.  959.26 to read as follows:


Sec.  959.26   Selection.

    The Secretary shall select members and respective alternates from 
districts established pursuant to Sec. Sec.  959.24 or 959.25. 
Selections shall be as follows:
    (a) District No. 1: Five producer members and alternates; three 
handler members and alternates.
    (b) District No. 2: Three producer members and alternates; two 
handler members and alternates.
0
5. Amend Sec.  959.32 by revising paragraph (a) to read as follows:


Sec.  959.32   Procedure.

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


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

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

[FR Doc. 2018-15793 Filed 7-27-18; 8:45 am]
 BILLING CODE 3410-02-P


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