Proposed Rule2021-18536
Peanut Promotion, Research, and Information Order; Increase the Threshold of the Primary Peanut-Producing States and Adjustment of Membership
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Published
August 27, 2021
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This proposal invites comments on increasing the threshold for defining primary peanut-producing states as states that maintain a 3- year average production of at least 20,000 tons of peanuts instead of 10,000 tons of peanuts as currently prescribed in the Peanut Promotion, Research, and Information Order (Order). The Order is administered by the National Peanut Board (Board) with oversight by the U.S. Department of Agriculture (USDA). As a result of increasing the threshold, this proposal would decrease the Board's membership from 13 to 12 members and their respective alternates. This action would contribute to effective administration of the program.
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<title>Federal Register, Volume 86 Issue 164 (Friday, August 27, 2021)</title>
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[Federal Register Volume 86, Number 164 (Friday, August 27, 2021)]
[Proposed Rules]
[Pages 48046-48049]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-18536]
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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. 86, No. 164 / Friday, August 27, 2021 /
Proposed Rules
[[Page 48046]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1216
[Document Number AMS-SC-20-0100]
Peanut Promotion, Research, and Information Order; Increase the
Threshold of the Primary Peanut-Producing States and Adjustment of
Membership
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposal invites comments on increasing the threshold for
defining primary peanut-producing states as states that maintain a 3-
year average production of at least 20,000 tons of peanuts instead of
10,000 tons of peanuts as currently prescribed in the Peanut Promotion,
Research, and Information Order (Order). The Order is administered by
the National Peanut Board (Board) with oversight by the U.S. Department
of Agriculture (USDA). As a result of increasing the threshold, this
proposal would decrease the Board's membership from 13 to 12 members
and their respective alternates. This action would contribute to
effective administration of the program.
DATES: Comments must be received by September 27, 2021.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. All comments must be submitted through
the Federal e-rulemaking portal at: <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and
should reference the document number and date, and page number of this
issue of the Federal Register. Comments submitted in response to this
proposed rule will be included in the rulemaking record and will be
made available to the public. Please be advised that the identity of
individuals or entities submitting the comments will be made public on
the internet at: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Victoria M. Carpenter, Marketing
Specialist, Promotion and Economics Division, Specialty Crop Program,
AMS, USDA, Stop 0244, 1400 Independence Avenue SW, Room 1406-S,
Washington, DC 20250-0244; telephone: (202) 720-6930; or electronic
mail: <a href="/cdn-cgi/l/email-protection#03556a60776c716a624e2d40627173666d77667143767067622d646c75"><span class="__cf_email__" data-cfemail="b9efd0dacdd6cbd0d8f497fad8cbc9dcd7cddccbf9cccaddd897ded6cf">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This proposal affecting the Order (7 CFR
part 1216) is authorized under the Commodity Promotion, Research, and
Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 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.
This action falls within a category of regulatory actions that the
Office of Management and Budget (OMB) exempted from Executive Order
12866 review.
Executive Order 13175
This action has been reviewed in accordance with requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. AMS has assessed the impact of this proposed rule on
Indian tribes and determined that this rule would not have tribal
implications that require consultation under Executive Order 13175. AMS
hosts a quarterly teleconference with tribal leaders where matters of
mutual interest regarding the marketing of agricultural products are
discussed. Information about proposed changes to regulations will be
shared during an upcoming quarterly call, and tribal leaders will be
informed about proposed revisions to the regulation and the opportunity
to submit comments. AMS will work with the USDA Office of Tribal
Relations to ensure meaningful consultation is provided as needed with
regards to this change to the Order.
Executive Order 12988
This proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. Section
524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect
or preempt any other Federal or State law authorizing promotion or
research relating to an agricultural commodity.
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject
to an order may file a written petition with USDA stating that an
order, any provision of an order, or any obligation imposed in
connection with an order, is not established in accordance with the
law, and request a modification of an order or an exemption from an
order. Any petition filed challenging an order, any provision of an
order, or any obligation imposed in connection with an order, shall be
filed within two years after the effective date of an order, provision,
or obligation subject to challenge in the petition. The petitioner will
have the opportunity for a hearing on the petition. Thereafter, USDA
will issue a ruling on the petition. The 1996 Act provides that the
district court of the United States for any district in which the
petitioner resides or conducts business shall have the jurisdiction to
review a final ruling on the petition, if the petitioner files a
complaint for that purpose not later than 20 days after the date of the
entry of USDA's final ruling.
Background
This proposed rule invites comments on increasing the threshold for
defining primary peanut-producing states as states that maintain a 3-
year average production of at least 20,000 tons of peanuts instead of
10,000 tons of peanuts as currently prescribed in the Order. This would
help ensure that the Board reflects the peanut production in the United
States. The Order is administered by the Board with oversight by USDA.
The Order became effective on July 30, 1999. Under the Order, the
Board administers a nationally coordinated program of promotion,
research and information designed to strengthen the position of peanuts
in the marketplace
[[Page 48047]]
and to develop, maintain, and expand the demand for peanuts in the
United States. Under the program, assessments are levied on all farmers
stock peanuts sold at a rate of $3.55 per ton for Segregation 1 peanuts
and $1.25 per ton for Segregation 2 peanuts and 3 peanuts, as those
terms are defined in 7 CFR 996.13(b) through (d). Assessments are
remitted to the Board by handlers and, for peanuts under loan, by the
Commodity Credit Corporation.
The Order defines terms ``minor peanut-producing states'' and
``primary peanut-producing states'' for purposes of Board
representation and voting at meetings. According to USDA, Federal-State
Inspection Service, National Peanut Tonnage Reports, there are 13
peanut-producing states, which include: Alabama, Arkansas, Florida,
Georgia, Louisiana, Mississippi, Missouri, New Mexico, North Carolina,
Oklahoma, South Carolina, Texas, and Virginia. Section 1216.21
currently defines primary peanut-producing states as Alabama, Arkansas,
Florida, Georgia, Mississippi, Missouri, New Mexico, North Carolina,
Oklahoma, South Carolina, Texas, and Virginia. These states must
maintain a 3-year average production of at least 10,000 tons of peanuts
to meet the current definition. All other peanut-producing states are
defined as minor peanut-producing states in Sec. 1216.15 and are
represented by one member and one alternate on the Board--currently
only Louisiana meets this definition.
With the growth in farm size, there are fewer and larger peanut
producers than when the Order was promulgated in 1999. As stated above,
currently, there is only one state, Louisiana, that represents the
minor peanut-producing states, which is the at-large position on the
Board. This makes it difficult to get adequate numbers of nominees to
fill both member and alternate member seats on the Board. By increasing
the threshold for defining primary peanut-producing states to states
that maintain a 3-year average production of at least 20,000 tons
instead of 10,000 tons of peanuts as currently prescribed, this action
would increase the candidate pool for at-large member seats on the
Board.
Pursuant to Sec. 1216.87, amendments to the Order may be proposed
from time to time by the Board or by any interested person affected by
provisions of the 1996 Act, including the Secretary of Agriculture.
The Board has been concerned about having enough nominees to fill
vacant seats for several years and was hopeful that the situation would
improve. The Board staff has actively recruited candidates to be
considered for nomination from multiple primary peanut-producing states
and the at-large state, sometimes with little success. Due to an
alternate member vacancy for New Mexico and difficulty finding
producers to serve, the Board determined it was time to increase the 3-
year average.
The Board discussed increasing the threshold with the industry to
explain the situation, and it was determined that increasing the
threshold for defining primary peanut-producing states was a good way
to give the peanut producing states an opportunity to be nominated for
a member or alternate seat on the Board.
Board Recommendation
The Board met to discuss methods to increase the pool of candidates
for representation of the minor peanut-producing states to serve on the
Board. At the time of the Board's formation in July 1999 (64 FR 41252),
peanut farms were smaller, and therefore, there were many more
producers eligible to be nominated to serve on the Board. In April
1999, USDA reported there were approximately 25,000 peanut producers
(64 FR 80107). Based on the Board's records, for the 2018 production
crop year, there were 8,126 peanut producers and for the 2019 crop
year, there were 7,200 peanut producers.
Currently, in minor peanut-producing states the pool of candidates
is very small, with Louisiana being the only state in this category.
The Board has had difficulty in gathering the required two nominees for
each open position for submission to the Secretary of Agriculture.
The Board has been concerned about this issue for several years and
was hopeful that the situation would improve. For approximately 10
years, the Board's management has actively recruited candidates to be
considered for nomination from multiple primary and minor peanut-
producing states to fill seats on the Board. In the 2020 submission to
the Secretary for appointments to fill member and alternate seats for
New Mexico, only two nominees were submitted for consideration instead
of four. Therefore, only the member seat was filled, and the alternate
seat remains vacant. In addition, since there is currently only one
state (Louisiana) representing minor peanut-producing states, it is
often difficult to get a sufficient number of nominees to fill member
and alternate positions as well. These nominees are comprised of
producers of all sizes including small producers.
In 1999, the Board was comprised of 10 members and their
alternates. The Board's representation for primary peanut-producing
states were Alabama, Florida, Georgia, New Mexico, North Carolina,
Oklahoma, South Carolina, Texas, and Virginia and minor peanut-
producing states were represented by a Louisiana member and an Arizona
alternate member. Over the years, there have been three adjustments of
membership, which increased the size of the Board's membership. On July
9, 2008, the Board increased its membership from 10 to 11 when it added
Mississippi as a primary peanut-producing state (73 FR 39214). On March
21, 2014, the Board increased its membership a second time from 11 to
12 when it added Arkansas as a primary peanut-producing state (79 FR
15636). The most recent change in the Board's membership was the
addition of Missouri, which was published on March 23, 2020 (85 FR
16229). That addition increased the membership from 12 to 13.
For the 2019 production year, computations based on Federal State
Inspection Service data show that Georgia was the largest producer,
with 49.8 percent followed by Florida (10.7 percent), Alabama (9.4
percent), Texas (8.7 percent), North Carolina (8.1 percent), South
Carolina (4.1 percent), Arkansas (3.1 percent), Virginia (2.0 percent),
Mississippi (1.4 percent), Missouri (1.2 percent), Oklahoma (1.0
percent), and New Mexico (0.3 percent). Currently, these 12 states are
considered primary peanut-producing states and they each have a member,
with their alternate, seated on the Board. All other states (minor
peanut-producing states) that produce peanuts are represented by the
at-large member.
As a result of membership adjustments described above, there is
currently only one minor peanut-producing state (Louisiana)
representing ``at-large'' seats. That minor peanut-producing state has
only five producers producing peanuts in that state. Increasing the
threshold from 10,000 tons to 20,000 tons, would cause the state of New
Mexico to become a minor peanut-producing state instead of a primary
peanut-producing state. This change would increase the pool of
candidates eligible to represent minor peanut-producing states as the
at-large member and alternate. Minor peanut-producing states would be
represented by Louisiana and New Mexico. This proposal would increase
the threshold for defining primary peanut-producing states as states
that maintain a 3-year average production of at least 20,000 tons of
peanuts instead of 10,000 tons of peanuts, an increase of 10,000 tons.
[[Page 48048]]
The intent of the Order was to allow peanut farmers to oversee a
peanut research, marketing, and promotion organization to improve their
economic condition. To be successful, there must be an adequate pool of
interested, qualified producers to serve on the Board. The Board voted
unanimously on December 3, 2020, and February 3, 2021, to raise the
threshold for primary peanut-producing states to those that maintain a
3-year average production of at least 20,000 tons of peanuts. This
proposed change would cause the state of New Mexico to become a minor
peanut-producing state instead of a primary peanut-producing state,
since its production will be below the proposed 20,000-ton threshold.
Minor peanut-producing states will be represented by Louisiana and New
Mexico. The Board recommended that the change take place by January 1,
2022, to give New Mexico's certified peanut producer organization
enough notice of their status change to a minor peanut-producing state.
Nominations to fill the at-large seats would take place in 2022 for the
term of office to begin in 2023.
Accordingly, this proposed rule would amend Sec. Sec. 1216.15 and
1216.21 to define the state of New Mexico as a minor peanut-producing
state. This proposal would require primary peanut-producing states to
maintain a 3-year average production of at least 20,000 tons of
peanuts. This proposal would also revise Sec. 1216.40(a) to specify
that the Board would be comprised of no more than 12 peanut producer
members and their alternates rather than 13, and revise Sec.
1216.40(a)(1) to reflect the new number of primary peanut-producing
states, by revising 12 to 11.
Initial Regulatory Flexibility Act Analysis
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C.
601-612), AMS is required to examine the impact of the proposed rule on
small entities. Accordingly, AMS has considered the economic impact of
this action on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
businesses subject to such actions so that small businesses will not be
disproportionately burdened. The Small Business Administration (SBA)
defines, in 13 CFR part 121, small agricultural producers as those
having annual receipts of no more than $1 million and small
agricultural service firms (handlers) as those having annual receipts
of no more than $30 million.
According to the Board, there were approximately 7200 producers and
34 handlers of peanuts who were subject to the program in 2019.
Most producers would be classified as small agricultural production
businesses under the criteria established by the SBA (no more than $1
million in annual peanut sales). USDA's National Agricultural
Statistics Service (NASS) reported that crop values of peanuts produced
in the top 11 peanut-producing states for the years 2017, 2018, and
2019 were $1.63 billion, $1.17 billion, and $1.13 billion,
respectively. The 3-year crop average was $1.31 billion. With a 2019
crop value of $1.13 billion and a total of 7,200 producers, average
peanut sales per producer were approximately $157,000. With a 2017-2018
average crop value of $1.31 billion, average sales per producer were
approximately $182,000. Both figures are well below the $1 million
threshold for a small producer, providing strong evidence that most
peanut producers are small businesses.
With 34 handlers, the average annual peanut crop value per handler
from 2017 to 2019 ranged from $33 million to $48 million, with a 3-year
average of $39 million. With average sales figures moderately higher
than the small business threshold size of $30 million, it appears that
several handlers are small businesses and there are also a number that
are large businesses--no definitive statement can be made.
According to NASS, the number of pounds of U.S. peanut production
from 11-primary peanut-producing states for 2017, 2018, and 2019 were
7.12 billion, 5.50 billion and 5.47 billion, respectively. The 3-year
average production was 6.03 billion pounds. Computations based on NASS
data show that Georgia was the largest producer, with 50.9 percent of
the 3-year average quantity, followed by Alabama (9.9 percent), Florida
(9.9 percent), Texas (9.1 percent), North Carolina (7.2 percent), South
Carolina (5.4 percent), Arkansas (2.4 percent), Mississippi (1.9
percent), Virginia (1.8 percent), Oklahoma (1.0 percent), and New
Mexico (under one percent).
This proposal would amend Sec. Sec. 1216.15, 1216.21 and 1216.40
to redefine the state of New Mexico from a primary peanut-producing
state to a minor peanut-producing state. The Order is administered by
the Board with oversight by USDA. Under the Order, primary peanut-
producing states must maintain a 3-year average production of at least
10,000 tons of peanuts. This amendment would increase the production
threshold to 20,000 tons of peanuts. This action would expand the
number of minor peanut-producing states to ensure that the Board
obtains an adequate pool of qualified producers to serve on the Board
to represent minor peanut-producing states. This action is authorized
under Sec. 1216.87 of the Order.
Regarding the economic impact of this proposed rule on affected
entities, this action would impose no costs on producers or handlers.
Changes would define the state of New Mexico as a minor peanut-
producing state based on the proposed increase to the threshold to
20,000 tons of peanuts.
Regarding alternatives, the Board has been concerned about
obtaining the required two nominees for each open seat to be submitted
to the Secretary of Agriculture for primary peanut-producing states and
minor peanut-producing states. For years, the Board's staff has
actively recruited candidates to be considered for nomination from
multiple primary peanut-producing states and minor peanut-producing
states, sometimes with little success. The Board considered increasing
the threshold for primary peanut-producing states from 10,000 to 30,000
per ton for a 3-year production average. After discussion, the Board
voted to double the threshold and require the primary peanut-producing
states to maintain a 3-year production average of at least 20,000 tons
of peanuts.
In accordance with OMB regulation [5 CFR part 1320], which
implements information collection requirements imposed by the Paperwork
Reduction Act of 1995 [44 U.S.C. 3501 et seq.], there are no new
requirements contained in this rule. In fact, a decrease of 0.30 hours
in the information collection burden for the peanut program is
expected. Information collection requirements have been previously
approved by OMB under OMB control number 0581-0093 and 0505-0001.
As with all Federal promotion programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies. USDA has not
identified any relevant Federal rules that duplicate, overlap, or
conflict with this proposed rule.
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.
Regarding outreach efforts, the Board invited Executive Directors
of certified peanut producer organizations who represent the primary
peanut-producing states (Georgia, Alabama, Texas, Florida, North
Carolina, South Carolina,
[[Page 48049]]
Mississippi, Missouri, Arkansas, Virginia, Oklahoma, and New Mexico) to
attend its annual meeting on February 3, 2021. Most of the Executive
Directors for certified peanut producer organizations attended this
meeting. All the Board's meetings are open to the public and interested
persons are invited to participate and express their views. The Board
announced that it voted to increase the threshold level from 10,000 to
20,000 per ton on a 3-year average production for a state to become a
primary peanut-producing state. No concerns were raised.
We have performed this initial RFA analysis regarding the impact of
this proposed action on small entities, and we invite comments
concerning potential effects of this action on small businesses.
USDA has determined that this proposed rule is consistent with and
would effectuate the purposes of the 1996 Act. A 30-day comment period
is provided to allow interested persons to respond to this proposal.
All written comments received in response to this proposed rule will be
considered prior to finalizing this action.
List of Subjects in 7 CFR Part 1216
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Peanut promotion, Reporting and
recordkeeping requirements.
For reasons set forth in the preamble, 7 CFR part 1216 is proposed
to be amended as follows:
PART 1216--PEANUT PROMOTION, RESEARCH, AND INFORMATION ORDER
0
1. The authority citation for 7 CFR part 1216 continues to read as
follows:
Authority: 7 U.S.C. 7411-7425; 7 U.S.C. 7401.
0
2. Section 1216.15 is revised to read as follows:
Sec. 1216.15 Minor peanut-producing states.
Minor peanut-producing states means all peanut-producing states
with the exception of Alabama, Arkansas, Florida, Georgia, Mississippi,
Missouri, North Carolina, Oklahoma, South Carolina, Texas and Virginia.
0
3. Section 1216.21 is revised to read as follows:
Sec. 1216.21 Primary peanut-producing states.
Primary peanut-producing states means Alabama, Arkansas, Florida,
Georgia, Mississippi, Missouri, North Carolina, Oklahoma, South
Carolina, Texas and Virginia, provided these states maintain a 3-year
average production of at least 20,000 tons of peanuts.
0
4. In Sec. 1216.40, paragraphs (a) introductory text and (a)(1) are
revised to read as follows:
Sec. 1216.40 Establishment and membership.
(a) Establishment of a National Peanut Board. There is hereby
established a National Peanut Board, hereinafter called the Board,
comprised of no more than 12 peanut producers and alternates, appointed
by the Secretary from nominations as follows:
(1) Eleven members and alternates. One member and one alternate
shall be appointed from each primary peanut-producing state, who are
producers and whose nominations have been submitted by certified peanut
producer organizations within a primary peanut-producing state.
* * * * *
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2021-18536 Filed 8-26-21; 8:45 am]
BILLING P
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