Rule2021-22487
Tomatoes Grown in Florida; Reapportionment of Membership
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 15, 2021
Effective
November 15, 2021
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 197 (Friday, October 15, 2021)</title>
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[Federal Register Volume 86, Number 197 (Friday, October 15, 2021)]
[Rules and Regulations]
[Pages 57356-57357]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22487]
[[Page 57356]]
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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.
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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:
<a href="/cdn-cgi/l/email-protection#6a391e0f1c0f0444210b1f0c0c070b042a1f190e0b440d051c"><span class="__cf_email__" data-cfemail="a4f7d0c1d2c1ca8aefc5d1c2c2c9c5cae4d1d7c0c58ac3cbd2">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#15567d677c66617c747b3b5b7c6666707b55606671743b727a63"><span class="__cf_email__" data-cfemail="afecc7ddc6dcdbc6cec181e1c6dcdccac1efdadccbce81c8c0d9">[email protected]</span></a>.
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:
<a href="/cdn-cgi/l/email-protection#feac979d969f8c9ad0b291899b8cbe8b8d9a9fd0999188"><span class="__cf_email__" data-cfemail="67350e040f061503492b08100215271214030649000811">[email protected]</span></a>.
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 Sec. 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.
[[Page 57357]]
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 Sec. 966.161 pursuant to
the authority in Sec. 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:
<a href="https://www.ams.usda.gov/rules-regulations/moa/small-businesses">https://www.ams.usda.gov/rules-regulations/moa/small-businesses</a>. 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
0
1. The authority citation for part 966 continues to read as follows:
Authority: 7 U.S.C. 601-674.
0
2. Revise Sec. 966.161 to read as follows:
Sec. 966.161 Reapportionment of Committee Membership.
Pursuant to Sec. 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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