Onions Grown in South Texas; Redistricting and Reapportionment of Committee Membership
| Published date | 08 April 2024 |
| Record Number | 2024-07329 |
| Citation | 89 FR 24393 |
| Court | Agricultural Marketing Service |
| Section | Proposed rules |
Federal Register, Volume 89 Issue 68 (Monday, April 8, 2024)
[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
________________________________________________________________________
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
