Tomatoes Grown in Florida; Proposed Amendments to the Marketing Order No. 966
| Citation | 84 FR 52042 |
| Record Number | 2019-21018 |
| Published date | 01 October 2019 |
| Court | Agricultural Marketing Service |
Federal Register, Volume 84 Issue 190 (Tuesday, October 1, 2019)
[Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)]
[Proposed Rules]
[Pages 52042-52044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21018]
[[Page 52042]]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Doc. No.: AMS-SC-19-0068; SC19-966-3]
Tomatoes Grown in Florida; Proposed Amendments to the Marketing
Order No. 966
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule invites comments on proposed amendments to
Marketing Order No. 966, which regulates the handling of tomatoes grown
in Florida. The proposed amendments would change the Florida Tomato
Committee's (Committee) size, length of the terms of office, and quorum
requirements.
DATES: Comments must be received by December 2, 2019.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. Comments must be sent to the Docket
Clerk, Marketing Order and Agreement Division, Specialty Crops Program,
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 document 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. All comments submitted in response to this
proposed rule will be included in the record and will be made available
to the public. 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: Geronimo Quinones, Marketing
Specialist, or Andrew Hatch, Chief, Rulemaking Services Branch,
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:
[email protected] or [email protected].
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: [email protected].
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
proposes an amendment 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. 966, as amended (7 CFR part 966), regulating the
handling of tomatoes grown in Florida. Part 966 (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 tomato producers operating within the area of production.
Section 8c(17) of the Act (7 U.S.C 608c(17)) and the applicable
rules of practice and procedure governing the formulation of marketing
agreements and orders (7 CFR part 900) authorize amendment of the Order
through this informal rulemaking action. The Agricultural Marketing
Service (AMS) will consider comments received in response to this
proposed rule, and based on all the information available, will
determine if the Order amendment is warranted. If AMS determines
amendment of the Order is warranted, a subsequent proposed rule and
notice of referendum would be issued and producers would be allowed to
vote for or against the proposed Order amendments. AMS would then issue
a final rule effectuating any amendments approved by producers in the
referendum.
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 tomatoes grown in Florida.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 8c(15)(A) of the
Act (7 U.S.C. 608 (15)(A)), 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 the 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 depending upon
the nature and complexity of the proposed amendments, 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 herein are not unduly complex and the nature of the
proposed amendments is appropriate for utilizing the informal
rulemaking process to amend the Order. A discussion of the potential
regulatory and economic impacts on affected entities is discussed later
in the ``Initial Regulatory Flexibility Analysis'' section of this
proposed rule.
The Committee unanimously recommended the amendments following
deliberations at two public meetings held on November 1, 2018, and
February 27, 2019. The proposals would amend the Order by changing the
Committee's size, the length of term of office, and quorum
requirements.
Proposal 1--Reduce Committee Size
Section 966.22 provides that the Committee consists of 12 members
and, for each member of the Committee,
[[Page 52043]]
there must be an alternate who has the same qualifications as the
member. This proposal would amend Sec. 966.22 by reducing the size of
the Committee from 12 to 10 members. The requirement that each member
have an alternate with the same qualifications as the member would
remain unchanged.
Since promulgation of the Order in 1995, the Florida tomato
industry has seen reductions of about 80% in the number of tomato
producers and 33% of registered handlers. Natural industry
consolidation and land development pressure have also contributed to
this decline. Decreasing the Committee's size from 12 members to 10
members would make Committee membership more reflective of today's
industry and enable it to fulfill quorum requirements.
Proposal 2--Revise Term of Office
Section 966.23 requires Committee members and their alternates to
serve for one year.
This proposal would change Sec. 966.23 by revising the term of
office for producer members from one year to two years beginning on
August 1 and ending as of July 31. Currently, the nominating process
for the 12 members and alternate members is conducted annually. This
proposed change would reduce the annual turnover on the Committee and
provide time for new members and alternates to learn the details of
Committee operations and business.
Proposal 3--Revise Quorum Requirements
Currently, Sec. 966.32 states that eight members of the Committee
shall constitute a quorum, and the same number of concurring votes
shall be required to pass any motion or approve any Committee action.
The proposed change would modify Sec. 966.32 to allow six members
to constitute a quorum. The requirement that the same number of
concurring votes (six) shall be required to pass any motion or approve
any Committee action would remain unchanged. The Committee is
experiencing difficulties filling all seats and obtaining a quorum at
meetings since several seats have been vacant. Adjusting the current
requirements would enable the Committee to operate fully and lower the
risk of not reaching a quorum during scheduled meetings. These changes
would help to streamline the Committee's operations and increase its
effectiveness.
Initial 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 initial regulatory flexibility analysis.
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
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 75 producers of Florida tomatoes in the
production area and 37 handlers subject to regulation under the Order.
Small agricultural producers are defined by the Small Business
Administration (SBA) 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).
According to industry and Committee data, the average annual price
for fresh Florida tomatoes during the 2017-18 season was approximately
$12.56 per 25-pound container, and total fresh shipments were 25.9
million containers. Using the average price and shipment information,
the number of handlers, and assuming a normal distribution, the
majority of handlers have average annual receipts of more than
$7,500,000 ($12.56 times 25.9 million containers equals $325,304,000
divided by 37 handlers equals $8,792,000 per handler).
With an estimated producer price of $6.00 per 25-pound container,
the number of Florida tomato producers, and assuming a normal
distribution, the average annual producer revenue is above $750,000
($6.00 times 25.9 million containers equals $155,400,000 divided by 75
producers equals $2,072,000 per producer). Thus, the majority of
handlers and producers of Florida tomatoes may be classified as large
entities.
The proposed amendments would change the Committee's size, the
length of term of office, and quorum requirements.
The Committee unanimously recommended the proposed amendments at
public meetings on November 1, 2018 and February 27, 2019. If these
proposals are approved in a referendum, there would be no direct
financial effects on producers or handlers. However, these proposed
changes would decrease administrative costs to producers and Committee
staff. This action would save time and work for producers and Committee
staff, by avoiding the annual requirement to prepare multiple
nomination notices and meetings, and the administrative and travel
expenses that are required to carry out these annual duties.
Since 1995, the number of producers and handlers operating in the
industry has decreased, which makes it difficult to find enough members
to fill positions on the Committee. Decreasing the Committee's size
would make it more reflective of today's industry. No economic impact
is expected if the proposed amendments are approved because they would
not establish any new regulatory requirements on handlers, nor would
they have 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 by the Committee. Due to changes in the industry,
AMS believes the proposals are justified and necessary to ensure the
Committee's ability to locally administer the program. Reducing the
size of the Committee would enable it to satisfy membership and quorum
requirements fully, 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 Florida tomato
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 52044]]
The Committee's meetings were widely publicized throughout the
Florida tomato production area. All interested persons were invited to
attend the meetings and encouraged to participate in Committee
deliberations on all issues. Like all Committee meetings, the November
1, 2018 and February 27, 2019, meetings were public, and all entities,
both large and small, were encouraged to express their views on the
proposals.
Interested persons are invited to submit comments on the proposed
amendments to the Order, including comments on the regulatory and
information collection impacts of this action on small businesses.
Following analysis of any comments received on the amendments in
this proposed rule, AMS will evaluate all available information and
determine whether to proceed. If appropriate, a proposed rule and
notice of referendum would be issued, and producers would be provided
the opportunity to vote for or against the proposed amendments.
Information about the referendum, including dates and voter eligibility
requirements, would be published in a future issue of the Federal
Register. A final rule would then be issued to effectuate any
amendments favored by producers participating in the referendum.
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.
General Findings
The findings hereinafter set forth are supplementary to the
findings and determinations which were previously made in connection
with the issuance of Marketing Order 966; 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. Marketing Order 966 as hereby proposed to be amended and all the
terms and conditions thereof, would tend to effectuate the declared
policy of the Act;
2. Marketing Order 966 as hereby proposed to be amended regulates
the handling of tomatoes grown in Florida and is applicable only to
persons in the respective classes of commercial and industrial activity
specified in the Order;
3. Marketing Order 966 as hereby proposed to be 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 marketing orders applicable to
subdivisions of the production area would not effectively carry out the
declared policy of the Act;
4. Marketing Order 966 as hereby proposed to be 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 tomatoes produced
or packed in the production area; and
5. All handling of tomatoes produced or packed in the production
area as defined in Marketing Order 966 is in the current of interstate
or foreign commerce or directly burdens, obstructs, or affects such
commerce.
A 60-day comment period is provided to allow interested persons to
respond to these proposals. Any comments received on the amendments
proposed in this proposed rule will be analyzed, and if AMS determines
to proceed based on all the information presented, a producer
referendum would be conducted to determine producer support for the
proposed amendments. If appropriate, a final rule would then be issued
to effectuate the amendments favored by producers participating in the
referendum.
List of Subjects in 7 CFR Part 966
Tomatoes, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 966 is
proposed to be amended as follows:
PART 966--TOMATOES GROWN IN FLORIDA
0
1. The authority citation for 7 CFR part 966 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Sec. 966.22 revise paragraph (a) to read as follows:
Sec. 966.22 Establishment and membership.
(a) The Florida Tomato Committee, consisting of 10 producer
members, is hereby established. For each member of the committee there
shall be an alternate who shall have the same qualifications as the
member.
* * * * *
0
3. In Sec. 966.23 revise paragraph (a) to read as follows:
Sec. 966.23 Term of office.
(a) The term of office of committee members, and their respective
alternates, shall be for 2 years and shall begin as of August 1 and end
as of July 31.
* * * * *
0
4. In Sec. 966.32 revise paragraph (a) to read as follows:
Sec. 966.32 Procedure.
(a) Six members of the committee shall be necessary to constitute a
quorum and the same number of concurring votes shall be required to
pass any motion or approve any committee action.
* * * * *
Dated: September 23, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2019-21018 Filed 9-30-19; 8:45 am]
BILLING CODE 3410-02-P
