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###### Department of Agriculture

###### Agricultural Marketing Service

          - 7 CFR Part 905
          - [Docket No. AMS-FV-08-0016; FV08-905-2 PR] 

# AGENCY:

Agricultural Marketing Service, USDA.

# ACTION:

Proposed rule.

# SUMMARY:

This rule invites comments on a temporary suspension of the order provision requiring periodic continuance referenda under the Florida citrus marketing order (order). This rule would suspend for the current cycle the order requirement that a continuance referendum be held every sixth year. The suspension is intended to minimize the confusion that could result from the overlap of the continuance referendum and another referendum associated with the amendatory process. It would also allow producers time to evaluate the results of the amendatory process before voting on the continuance of the order.

# DATES:

Comments must be received by September 26, 2008.

# ADDRESSES:

                        Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue,  SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:                         *http://www.regulations.gov.*                         All comments should reference the docket number and the date and page number of this issue of the                         **Federal Register**                         and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at:                         *http://www.regulations.gov.*

# FOR FURTHER INFORMATION CONTACT:

                        Doris Jamieson, Marketing Specialist, or Christian D. Nissen, Regional Manager, Southeast Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or e-mail:                         *Doris.Jamieson@usda.gov*                         or                         *Christian.Nissen@usda.gov.*

                        Small businesses may request information on complying with this regulation 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@usda.gov.*

# SUPPLEMENTARY INFORMATION:

This proposal is issued under Marketing Agreement No. 84 and Marketing Order No. 905, both as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida, hereinafter referred to as the “order.” 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 Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

                    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                           ( print page 50583)                        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 proposal invites comments on a temporary suspension of the order provision requiring periodic continuance referenda under the order. This rule would suspend for the current 6-year cycle the order requirement that a continuance referendum be held every sixth year. The suspension is intended to minimize the confusion that could result from the overlap of the continuance referendum and another referendum associated with the amendatory process. It would also allow producers time to evaluate the results of the amendatory process before voting on the continuance of the order. The Citrus Administrative Committee (Committee) unanimously recommended this action at a meeting on January 22, 2008.

Section 905.83(c) requires the Secretary to conduct a referendum every sixth year to ascertain whether continuance of the order is favored by producers. It has been six years since the last continuance referendum, and absent a temporary suspension of this provision, the periodic continuance referendum would need to be scheduled and conducted this year. Additionally, AMS is currently considering proposed amendments to the order. The amendment process potentially entails conducting a referendum to ascertain whether the proposed amendments are favored by producers.

The Committee is concerned that the overlap of the two processes could confuse industry members and could diminish voter participation in one or both of the referenda. The Committee manager and Committee members have attended several industry meetings and discussions regarding the proposed amendments and the amendatory process, including making the industry aware of the potential producer referendum and the opportunity to vote on the proposed amendments. Without the suspension of the continuance referendum, growers could be receiving the continuance referendum ballot in the middle of the amendatory process. As such, the timing of the ballot's receipt could cause some confusion among growers as to the scope and purpose of the ballot. Further, growers receiving the ballot for the amendatory process shortly after receiving the continuance referendum ballot might disregard the second ballot. This could negatively affect the voting process and voter participation.

Consequently, the Committee recommended suspending the continuance referendum for the current cycle to avoid any potential confusion. This action would isolate the amendment process and its referendum from the periodic continuance referendum so that producers would be better informed regarding the issues each ballot represents and would be more likely to participate in both referenda. The Committee expects that the suspension of this cycle for the continuance referendum would minimize confusion and maximize producer participation.

In addition, the temporary suspension of the continuance referendum would allow the industry time to operate under any order changes that may be made as a result of the current amendatory process. This would give the industry an opportunity to evaluate the effects of any amendatory changes prior to voting on the continuance of the order. However, USDA believes that a continuous referendum should be held in the interim, rather than waiting another full six year cycle. As such, with the amendatory process scheduled to be completed in 2009, USDA plans to conduct the next continuance referendum in 2010. The continuance referendum cycle would then resume as provided in § 905.83(c) in 2014.

## Initial Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action 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 business 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 55 handlers subject to regulation under the marketing order and approximately 8,000 producers of oranges, grapefruit, tangerines, and tangelos in the production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

                    Based on industry and Committee data, the average annual f.o.b. price for fresh Florida citrus during the 2006-07 season was approximately $12.25 per                     4/5                    -bushel carton, and total fresh shipments were approximately 36.8 million cartons. Using the average f.o.b. price and shipment data, at least 55 percent of the Florida citrus handlers could be considered small businesses under SBA's definition. In addition, based on production and producer prices reported by the National Agricultural Statistics Service, and the total number of Florida citrus producers, the average annual producer revenue is less than $750,000. Therefore, the majority of handlers and producers of Florida citrus may be classified as small entities.                

This rule would suspend for the current cycle the order requirement that a continuance referendum be held every sixth year. The suspension is intended to minimize the confusion that could result from the overlap of the continuance referendum and a referendum associated with the amendatory processes. It would also allow producers time to evaluate the results of the amendatory process before voting on continuance of the order. This rule would temporarily suspend the provisions of § 905.83(c) which specify the continuance referendum requirements. The Act authorizes suspension of order provisions.

One alternative to this action would be to conduct the continuance referendum as scheduled. However, if the continuance referendum was conducted, the referendum period could overlap with an amendment referendum, which could cause some voter confusion. The Committee was concerned that the confusion would lead to decreased grower participation. Further, the Committee believes that growers need time to evaluate the effectiveness of the proposed amendments before voting on continuation of the order. Therefore, this alternative was rejected.

                    This rule would temporarily suspend the provisions of § 905.83(c) which specify the continuance referendum requirements. Accordingly, this rule would not impose any additional reporting or recordkeeping requirements on either small or large Florida citrus 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.                          ( print page 50584)    

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 rule. In addition, the Committee's meeting was widely publicized throughout the Florida citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the January 22, 2008, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

                    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/​AMSv1.0/​ams.fetchTemplateData.do?​template=​TemplateN&​page=​MarketingOrdersSmallBusinessGuide.*                     Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the                     **FOR FURTHER INFORMATION CONTACT**                     section.                

A 30-day comment is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate because this rule should be implemented as soon as possible since the marketing order continuance referendum is scheduled for the current season. Further, the Committee discussed this issue at a public meeting and interested parties had an opportunity to provide input. All written comments timely received will be considered before a final determination is made on this matter.

# 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, 7 CFR part 905 is proposed to be amended 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.

§ 905.83 

2. Amend paragraph (c) of § 905.83 by: 

a. Designating the first sentence “The Secretary shall conduct a referendum six years after the effective date of this paragraph and every sixth year thereafter to ascertain whether continuance of this part is favored by producers” as paragraph (c)(1) and the next two sentences as paragraph (c)(2). 

b. Newly designated paragraph (c)(1) is temporarily suspended for 2008.

Dated: August 20, 2008.

Lloyd C. Day,

Administrator, Agricultural Marketing Service.

[FR Doc. E8-19749 Filed 8-26-08; 8:45 am]

BILLING CODE 3410-02-P