Tomatoes Grown in Florida; Reapportionment of Membership
| Published date | 15 October 2021 |
| Citation | 86 FR 57356 |
| Record Number | 2021-22487 |
| Section | Rules and Regulations |
| Court | Agricultural Marketing Service |
57356
Federal Register / Vol. 86, No. 197 / Friday, October 15, 2021 / Rules and Regulations
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Doc. No. AMS–SC–21–0016; SC21–966–1
FR]
Tomatoes Grown in Florida;
Reapportionment of Membership
AGENCY
: Agricultural Marketing Service,
USDA.
ACTION
: Final rule.
SUMMARY
: This final rule adjusts the
number of member seats apportioned to
each district represented on the Florida
Tomato Committee (Committee). The
Department of Agriculture (USDA) is
taking this action due to a 2020
amendment to the marketing order for
tomatoes grown in Florida, which
reduced the size of the Committee from
12 members to 10, but did not also
reduce the number of member seats per
district. This action changes the number
of members in each of the two districts
from six members and their alternates to
five members and their alternates, to
resolve the regulatory conflict.
DATES
: Effective November 15, 2021.
FOR FURTHER INFORMATION CONTACT
:
Steven W. Kauffman, Marketing
Specialist, or Christian D. Nissen,
Regional Director, Southeast Region
Branch, Market Development Division,
Specialty Crops Program, AMS, USDA;
Telephone: (863) 324–3375, Fax: (863)
291–8614, or Email: Steven.Kauffman@
usda.gov or Christian.Nissen@usda.gov.
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) 720–2491, or Email:
Richard.Lower@usda.gov.
SUPPLEMENTARY INFORMATION
: This
action, pursuant to 5 U.S.C. 553,
amends regulations issued to carry out
a marketing order as defined in 7 CFR
900.2(j). This final rule is issued under
Marketing Agreement No. 125 and
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 producers operating within the
production area.
The Department of Agriculture
(USDA) is issuing this rule in
conformance with 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.
This 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 this 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 rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This 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 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
not later than 20 days after the date of
the entry of the ruling.
The Committee met on November 1,
2018, and February 27, 2019, to
recommend changes to the Order. These
recommendations included reducing the
Committee size from 12 members to 10,
reducing the number of districts in the
production area from four districts to
two, and establishing that membership
on the Committee be divided evenly
between the two districts. The reduction
to two districts and the reapportionment
of Committee membership that provided
equal representation of six members in
each of the newly formed districts were
completed under a separate rulemaking
published in the Federal Register on
September 26, 2019 (84 FR
50711)(‘‘2019 Amendments’’).
Further amendments to the Order
published in the Federal Register on
November 16, 2020 (85 FR 72914)(‘‘2020
Amendments’’), in part, reduced total
membership on the Committee from 12
members and their alternates to 10
members and their alternates under 7
CFR 966.22(a). However, 7 CFR 966.161
continued to designate six member seats
and their alternates to each of the two
districts, for a total of 12 members and
their alternates. This rule resolves that
conflict in the Order by reducing
member seats in each of the two
districts from six members and their
alternates to five members and their
alternates, maintaining equitable
representation on the Committee from
both districts.
Section 966.22 provides for the
establishment of membership on the
Committee. Ten members and their
alternates shall be producers, or officers
or employees of a corporate producer, in
the district for which selected and a
resident of the production area. Section
966.160 defines two districts from
which producers serve as
representatives on the Committee.
Section 966.25 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.
Section 966.161 apportions Committee
membership among the two districts
pursuant to § 966.25.
During the Committee’s discussions
on November 1, 2018, and February 27,
2019, members indicated they wanted to
establish equity in membership between
the two districts. This action reduces
the seats in each district from six
members and their alternates to five
members and their alternates to conform
with the 2020 Amendments to 7 CFR
966.22(a). This will maintain equitable
representation on the Committee and
bring the total number of apportioned
seats from two districts into compliance
with the reduced number of Committee
members authorized in the Order, at 7
CFR 966.22(a).
Accordingly, each district will
nominate five members and five
alternates for a total of 10 members and
10 alternate nominees to serve on the
Committee.
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57357
Federal Register / Vol. 86, No. 197 / Friday, October 15, 2021 / Rules and Regulations
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA) (5
U.S.C. 601–612), the Agricultural
Marketing Service (AMS) has
considered the economic impact of this
rule 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 65 producers
of Florida tomatoes in the production
area and 41 handlers subject to
regulation under the Order. Small
agricultural producers are defined by
the Small Business Administration
(SBA) as those having annual receipts of
less than $1,000,000, and small
agricultural service firms are defined as
those whose annual receipts are less
than $30,000,000 (13 CFR 121.201).
With an estimated producer price of
$14.00 per 25-pound container, the
number of Florida tomato producers,
and a normal distribution assumed, the
average annual producer revenue is
above $1,000,000, ($14.00 times 22.3
million containers equal $312,200,000,
divided by 65 producers equals
$4,803,077 per producer). Thus, the
majority of producers of Florida
tomatoes may be classified as large
entities.
According to industry and Committee
data, the average annual price for fresh
Florida tomatoes during the 2019–20
season was approximately $19.07 per
25-pound container, and total fresh
shipments were 22.3 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 less than $30,000,000,
($19.07 times 22.3 million containers
equals $425,261,000, divided by 41
handlers equals $10,372,220 per
handler). Thus, the majority of handlers
of Florida tomatoes may be classified as
small entities.
This final rule adjusts the number of
member seats apportioned on the
Committee. USDA is taking this action
because a 2020 amendment to the Order
reduced the size of the Committee from
12 members to 10, but did not
simultaneously reduce member seats in
each of the two districts from six
members and their alternates to five
members and their alternates. This
conforming change revises § 966.161
pursuant to the authority in § 966.25.
The balance of representation on the
Committee will remain the same, with
member seats divided evenly between
the two districts. Effects of this final
rule should not be disproportionately
greater or less for small entities than for
larger entities.
It is not anticipated that this action
will impose any additional costs on the
industry. This change is a conforming
change and will not establish any new
regulatory requirements on handlers.
There should be no change in financial
costs, reporting, or recordkeeping
requirements because of this action.
Alternatives to reapportionment were
discussed and considered by the
Committee. However, these alternatives
were rejected. The Committee agreed
that given the number of producers had
decreased, reducing the Committee size
would make it more reflective of today’s
industry. The Committee also wanted to
maintain the balance of representation
between the two districts. With the 2020
amendment to the Order, this action is
necessary to make regulations conform
to the Order requirements.
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 are necessary in those
requirements because of this action.
Should any changes become necessary,
they will be submitted to OMB for
approval.
This final rule imposes 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. USDA has not
identified any relevant Federal rules
that duplicate, overlap, or conflict with
this final 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.
The Committee’s meetings are widely
publicized throughout the Florida
tomato industry, and all interested
persons are invited to attend meetings
and participate in Committee
deliberations on all issues. Like all
Committee meetings, the November 1,
2018, and February 27, 2019, meetings
were open to the public, and all entities,
both large and small, were able to
express their views on this issue.
A proposed rule concerning this
action was published in the Federal
Register on June 28, 2021 (86 FR 33913).
Copies of the proposed rule were sent
via email to Committee members and
Florida tomato handlers. Additionally,
the proposed rule was made available
through the internet by USDA and the
Office of the Federal Register. A 30-day
comment period ending July 28, 2021,
was provided to allow interested
persons to respond to the proposal. No
comments on the proposal were
received. Accordingly, no changes were
made to the rule as proposed.
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.
After consideration of all relevant
material presented, including the
information and recommendation
submitted by the Committee and other
available information, it has been found
that this rule will effectuate the declared
policy of the Act.
List of Subjects in 7 CFR Part 966
Marketing agreements, Reporting and
recordkeeping requirements, Tomatoes.
For reasons set forth in the preamble,
7 CFR part 966 is amended as follows:
PART 966—TOMATOES GROWN IN
FLORIDA
■1. The authority citation for part 966
continues to read as follows:
Authority: 7 U.S.C. 601–674.
■2. Revise § 966.161 to read as follows:
§ 966.161 Reapportionment of Committee
Membership.
Pursuant to § 966.25, industry
membership on the Florida Tomato
Committee shall be reapportioned as
follows:
(a) District 1—five members and their
alternates.
(b) District 2—five members and their
alternates.
Erin Morris,
Associate Administrator, Agricultural
Marketing Service.
[FR Doc. 2021–22487 Filed 10–14–21; 8:45 am]
BILLING CODE P
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