[Federal Register Volume 77, Number 69 (Tuesday, April 10, 2012)]
[Proposed Rules]
[Pages 21492-21494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8532]
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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. 77, No. 69 / Tuesday, April 10, 2012 /
Proposed Rules
[[Page 21492]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Doc. No. AMS-FV-11-0080; FV11-966-1 PR]
Tomatoes Grown in Florida; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule would increase the assessment rate established for
the Florida Tomato Committee (Committee) for the 2011-12 and subsequent
fiscal periods from $0.0275 to $0.037 per 25-pound carton of tomatoes
handled. The Committee locally administers the marketing order which
regulates the handling of tomatoes grown in Florida. Assessments upon
tomato handlers are used by the Committee to fund reasonable and
necessary expenses of the program. The fiscal period begins August 1
and ends July 31. The assessment rate would remain in effect
indefinitely unless modified, suspended, or terminated.
DATES: Comments must be received by April 25, 2012.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order and Agreement Division, 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. Comments should reference the document number and
the date and page number of this issue of the Federal Register and will
be 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 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: Doris Jamieson, Marketing Specialist,
or Christian D. Nissen, Regional Manager, Southeast Marketing Field
Office, Marketing Order and Agreement Division, Fruit and Vegetable
Programs, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or
Email: [email protected] or [email protected].
Small businesses may request information on complying with this
regulation by contacting Laurel May, Marketing Order and Agreement
Division, 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 Email: [email protected].
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966),
regulating the handling of tomatoes 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 rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Florida tomato
handlers are subject to assessments. Funds to administer the order are
derived from such assessments. It is intended that the assessment rate
as proposed herein would be applicable to all assessable tomatoes
beginning on August 1, 2011, and continue until amended, suspended, or
terminated.
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. 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 rule would increase the assessment rate established for the
Committee for the 2011-12 and subsequent fiscal periods from $0.0275 to
$0.037 per 25-pound carton of tomatoes.
The Florida tomato marketing order provides authority for the
Committee, with the approval of USDA, to formulate an annual budget of
expenses and collect assessments from handlers to administer the
program. The members of the Committee are producers of Florida
tomatoes. They are familiar with the Committee's needs and with the
costs for goods and services in their local area and are thus in a
position to formulate an appropriate budget and assessment rate. The
assessment rate is formulated and discussed in a public meeting. Thus,
all directly affected persons have an opportunity to participate and
provide input.
For the 2009-10 and subsequent fiscal periods, the Committee
recommended, and USDA approved, an assessment rate that would continue
in effect from fiscal period to fiscal period unless modified,
suspended, or terminated by USDA upon recommendation and information
submitted by the Committee or other information available to USDA.
The Committee met on August 23, 2011, and unanimously recommended
2011-12 expenditures of $1,496,452 and an assessment rate of $0.037 per
25-pound carton of tomatoes. In comparison, last year's budgeted
expenditures were $1,496,971. The assessment rate of $0.037 is $0.0095
higher than the rate currently in effect.
The Committee estimates the 2011-2012 crop to be approximately 35
million 25-pound cartons, down from the 45 million cartons estimated
for last year. At the current assessment rate, assessment income would
equal only $962,500, an amount insufficient to cover the Committee's
anticipated expenditures. Therefore, the Committee voted to increase
the assessment rate in
[[Page 21493]]
order to generate sufficient funds to meet Committee expenses.
The major expenditures recommended by the Committee for the 2011-12
year include $575,000 for education and promotion, $436,372 for
salaries, $250,000 for research, and $64,000 for office space. Budgeted
expenses for these items in 2010-11 were $535,500, $436,372, $250,000,
and $62,283, respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Florida
tomatoes. Tomato shipments for the year are estimated at 35 million 25-
pound cartons which should provide $1,295,000 in assessment income.
Income derived from handler assessments, along with interest income,
USDA Market Access Program (MAP) funds, and funds from the Committee's
authorized reserve, would be adequate to cover budgeted expenses. Funds
in the reserve (approximately $200,000) would be kept within the
maximum permitted by the order of not to exceed one fiscal period's
expenses as stated in Sec. 966.44.
The proposed assessment rate would continue in effect indefinitely
unless modified, suspended, or terminated by USDA upon recommendation
and information submitted by the Committee or other available
information.
Although this assessment rate would be in effect for an indefinite
period, the Committee would continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or USDA.
Committee meetings are open to the public and interested persons may
express their views at these meetings. USDA would evaluate Committee
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking would
be undertaken as necessary. The Committee's 2011-12 budget and those
for subsequent fiscal periods would be reviewed and, as appropriate,
approved by USDA.
Initial 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 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 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 approximately 100 producers of tomatoes in the production
area and approximately 80 handlers subject to regulation under the
marketing 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 $7,000,000 (13 CFR 121.201).
Based on industry and Committee data, the average annual price for
fresh Florida tomatoes during the 2010-11 season was approximately
$13.88 per 25-pound container, and total fresh shipments for the 2010-
11 season were 36,100,637 25-pound cartons of tomatoes. Committee data
indicates that approximately 21 percent of the handlers handle 90
percent of the total volume shipped. Based on the average price, about
80 percent of handlers could be considered small businesses under SBA's
definition. In addition, based on production data, grower prices as
reported by the National Agricultural Statistics Service, and the total
number of Florida tomato growers, the average annual grower revenue is
below $750,000. Thus, the majority of handlers and producers of Florida
tomatoes may be classified as small entities.
This rule would increase the assessment rate established for the
Committee and collected from handlers for the 2011-12 and subsequent
fiscal periods from $0.0275 to $0.037 per 25-pound carton of tomatoes.
The Committee unanimously recommended 2011-12 expenditures of
$1,496,452 and an assessment rate of $0.037 per 25-pound carton of
tomatoes. The proposed assessment rate of $0.037 is $0.0095 higher than
the 2010-11 rate. The quantity of assessable tomatoes for the 2011-12
season is estimated at 35 million cartons. Thus, the $0.037 rate should
provide $1,295,000 in assessment income. Income derived from handler
assessments, along with interest income, MAP funds, and funds from the
Committee's authorized reserve fund, would be adequate to meet this
year's expenses.
The major expenditures recommended by the Committee for the 2011-12
year include $575,000 for Education and Promotion, $436,372 for
salaries, $250,000 for research, and $64,000 for office space. Budgeted
expenses for these items in 2010-11 were $535,500, $436,372, $250,000,
and $62,283, respectively.
The Committee estimates the 2011-2012 crop to be approximately 35
million 25-pound cartons, down from the 45 million cartons estimated
for last year. At the current assessment rate, assessment income would
equal only $962,500, an amount insufficient to cover the Committee's
anticipated expenditures. Therefore, the Committee voted to increase
the assessment rate in order to generate sufficient funds to meet
Committee expenses.
The Committee reviewed and unanimously recommended 2011-12
expenditures of $1,496,452. Prior to arriving at this budget, the
Committee considered information from various sources, such as the
Committee's Executive Subcommittee, Finance Subcommittee, and Education
and Promotion Subcommittee. Alternative expenditure levels were
discussed by these groups, based upon the relative value of various
education and promotion projects to the tomato industry. The assessment
rate of $0.037 per 25-pound carton of assessable tomatoes was then
determined by dividing the total recommended budget by the quantity of
assessable tomatoes, estimated at 35 million 25-pound cartons for the
2011-12 year. The increased assessment rate should provide $1,295,000
in assessment income. This is approximately $201,452 below the
anticipated expenses, which the Committee determined to be acceptable.
A review of historical information and preliminary information
pertaining to the upcoming crop year indicates that the grower price
for the 2011-12 season could range between $32.80 and $4.83 per 25-
pound carton of tomatoes. Therefore, the estimated assessment revenue
for the 2011-12 crop year as a percentage of total grower revenue could
range between .1 and .8 percent.
This action would increase the assessment obligation imposed on
handlers. While assessments impose some additional costs on handlers,
the costs are minimal and uniform on all handlers. Some of the
additional costs may be passed on to producers. However, these costs
would be offset by the benefits derived by the operation of the
marketing order. In addition, the Committee's meeting was widely
publicized throughout the Florida tomato industry and all interested
persons were invited to attend the
[[Page 21494]]
meeting and participate in Committee deliberations on all issues. Like
all Committee meetings, the August 23, 2011, 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 and
informational 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 the Office of Management and Budget (OMB) and
assigned OMB No. 0581-0178 Vegetable and Specialty Crops. No changes in
those requirements as a result of this action are necessary. 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 rule.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about
the compliance guide should be sent to Laurel May at the previously-
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
A 15-day comment period is provided to allow interested persons to
respond to this proposed rule. Fifteen days is deemed appropriate
because: (1) The 2011-12 fiscal period began on August 1, 2011, and the
marketing order requires that the rate of assessment for each fiscal
period apply to all assessable tomatoes handled during such fiscal
period; (2) the Committee needs to have sufficient funds to pay its
expenses which are incurred on a continuous basis; and (3) handlers are
aware of this action which was unanimously recommended by the Committee
at a public meeting and is similar to other assessment rate actions
issued in past years.
List of Subjects in 7 CFR Part 966
Marketing agreements, Reporting and recordkeeping requirements,
Tomatoes.
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
1. The authority citation for 7 CFR part 966 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 966.234 is revised to read as follows:
Sec. 966.234 Assessment rate.
On and after August 1, 2011, an assessment rate of $0.037 per 25-
pound carton is established for Florida tomatoes.
Dated: April 4, 2012.
Robert C. Keeney,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2012-8532 Filed 4-9-12; 8:45 am]
BILLING CODE 3410-02-P