[Federal Register Volume 78, Number 27 (Friday, February 8, 2013)]
[Rules and Regulations]
[Pages 9307-9309]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02816]



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Rules and Regulations
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Federal Register / Vol. 78, No. 27 / Friday, February 8, 2013 / Rules 
and Regulations

[[Page 9307]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Doc. No. AMS-FV-12-0051; FV12-966-1 IR]


Tomatoes Grown in Florida; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Florida Tomato Committee (Committee) for the 2012-13 and subsequent 
fiscal periods from $0.037 to $0.024 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 
Florida 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 will remain in effect 
indefinitely unless modified, suspended, or terminated.

DATES: Effective February 11, 2013. Comments received by April 9, 2013, 
will be considered prior to issuance of a final rule.

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 Program, 
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: Corey Elliott, Marketing Specialist or 
Christian D. Nissen, Regional Director, Southeast Marketing Field 
Office, Marketing Order and Agreement Division, Fruit and Vegetable 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or 
Email: Corey.Elliott@ams.usda.gov or Christian.Nissen@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Laurel.May@ams.usda.gov.

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 issued herein will be applicable to all assessable Florida tomatoes 
beginning August 1, 2012, 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 decreases the assessment rate established for the 
Committee for the 2012-13 and subsequent fiscal periods from $0.037 per 
25-pound carton to $0.024 per 25-pound carton of Florida 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 2011-12 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 22, 2012, and unanimously recommended 
2012-13 expenditures of $1,672,952 and an assessment rate of $0.024 per 
25-pound carton of tomatoes. In comparison, last year's budgeted 
expenditures were $1,561,952. The assessment rate of $0.024 is $0.013 
lower than the rate currently in effect. The Committee recommended 
decreasing the assessment rate by using additional funds from reserves 
to help reduce overall industry costs.

[[Page 9308]]

    The major expenditures recommended by the Committee for the 2012-13 
year include $750,000 for education and promotion, $436,372 for 
salaries, $250,000 for research, $66,000 for office rent, and $48,000 
for employee health insurance. Budgeted expenses for these items in 
2011-12 were $640,500, $436,372, $250,000, $64,000 and $48,000, 
respectively.
    The assessment rate recommended by the Committee was derived by 
reviewing anticipated expenses, shipments, funds from block grants, 
interest income, and available reserves. Florida tomato shipments for 
the year are estimated at 35 million 25-pound cartons which should 
provide $840,000 in assessment income. Income derived from handler 
assessments, along with funds from the Committee's authorized reserve, 
interest income, and funds from block grants, will be adequate to cover 
budgeted expenses. Funds in the reserve (currently $729,000) will be 
kept within the maximum permitted by the order of not to exceed one 
fiscal period's expenses as authorized in Sec.  966.44.
    The assessment rate established in this rule will 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 is effective for an indefinite 
period, the Committee will 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 will evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking will 
be undertaken as necessary. The Committee's 2012-13 budget and those 
for subsequent fiscal periods will 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 80 handlers of tomatoes in the production 
area and approximately 100 producers subject to regulation under the 
marketing order. Small agricultural service firms are defined by the 
Small Business Administration (SBA) as those whose annual receipts are 
less than $7,000,000 and small agricultural producers are defined as 
those having annual receipts less than $750,000 (13 CFR 121.201).
    Based on industry and Committee data, the average annual price for 
fresh Florida tomatoes during the 2011-12 season was approximately 
$6.62 per 25-pound container, and total fresh shipments for the 2011-12 
season were approximately 38,175,363 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 decreases the assessment rate established for the 
Committee and collected from handlers for the 2012-13 and subsequent 
fiscal periods from $0.037 to $0.024 per 25-pound carton of tomatoes. 
The Committee unanimously recommended 2012-13 expenditures of 
$1,672,952 and an assessment rate of $0.024 per 25-pound carton of 
tomatoes. The assessment rate of $0.024 is $0.013 lower than the 2011-
12 rate. The Committee recommended decreasing the assessment rate by 
using additional funds from reserves to help reduce overall industry 
costs. The quantity of assessable tomatoes for the 2012-13 season is 
estimated at 35 million cartons. Thus, the $0.024 rate should provide 
$840,000, in assessment income. Income derived from handler 
assessments, along with funds from the Committee's authorized reserve, 
interest income, and funds from block grants, will be adequate to cover 
budgeted expenses.
    The major expenditures recommended by the Committee for the 2012-13 
year include $750,000 for education and promotion, $436,372 for 
salaries, $250,000 for research, $66,000 for office rent, and $48,000 
for employee health insurance. Budgeted expenses for these items in 
2011-12 were $640,500, $436,372, $250,000, $64,000 and $48,000, 
respectively.
    The Committee reviewed and unanimously recommended 2012-13 
expenditures of $1,672,952. 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. The assessment rate recommended by the 
Committee was derived by reviewing anticipated expenses and shipments 
of Florida tomatoes, expected funds from block grants, interest income, 
and available reserves. Florida tomato shipments for the year are 
estimated at 35 million 25-pound cartons which should provide $840,000 
in assessment income. Assessments, along with funds from block grants 
and interest income, will be approximately $42,952 less than the 
anticipated expenses, which the Committee determined to be acceptable. 
Funds from the Committee's financial reserve will be used to make up 
the shortfall in revenue.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the grower price 
for the 2012-13 season could range between $3.68 and $12.09 per 25-
pound carton of tomatoes. Therefore, the estimated assessment revenue 
for the 2012-13 crop year as a percentage of total grower revenue could 
range between .2 and .7 percent.
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to producers. However, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers. In addition, the Committee's meeting was widely 
publicized throughout the Florida tomato industry and all interested 
persons were invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the August 
22, 2012, 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 interim rule, including 
the regulatory and

[[Page 9309]]

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 action 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.
    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.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register because: (1) The 2012-13 fiscal period began on August 1, 
2012, and the marketing order requires that the rate of assessment for 
each fiscal period apply to all assessable Florida tomatoes handled 
during such fiscal period; (2) this action decreases the assessment 
rate for assessable Florida tomatoes beginning with the 2012-13 fiscal 
period; (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; and (4) this 
interim rule provides a 60-day comment period, and all comments timely 
received will be considered prior to finalization of this rule.

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 
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. Section 966.234 is revised to read as follows:


Sec.  966.234  Assessment rate.

    On and after August 1, 2012, an assessment rate of $0.024 per 25-
pound carton is established for Florida tomatoes.

    Dated: February 4, 2013.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2013-02816 Filed 2-7-13; 8:45 am]
BILLING CODE 3410-02-P