[Federal Register Volume 74, Number 212 (Wednesday, November 4, 2009)]
[Rules and Regulations]
[Pages 57057-57060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26462]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 966

[Doc. No. AMS-FV-09-0063; FV09-966-2 IFR]


Tomatoes Grown in Florida; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule.

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SUMMARY: This rule decreases the assessment rate established for the 
Florida Tomato Committee (Committee) for the 2009-10 and subsequent 
fiscal periods from $0.0375 to $0.0275 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 November 5, 2009. Comments received by January 4, 
2010, 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 Administration Branch, 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

[[Page 57058]]

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 Administration Branch, Fruit and Vegetable 
Programs, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or 
E-mail: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, 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 E-mail: [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 issued herein will be applicable to all assessable Florida tomatoes 
beginning August 1, 2009, 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 2009-10 and subsequent fiscal periods from $0.0375 
per 25-pound carton to $0.0275 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 2008-09 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 20, 2009, and unanimously recommended 
2009-10 expenditures of $1,910,500 and an assessment rate of $0.0275 
per 25-pound carton of tomatoes. In comparison, last year's budgeted 
expenditures were $2,438,200. The assessment rate of $0.0275 is $0.01 
lower than the rate currently in effect. The Committee recommended the 
decrease in assessment rate due to a reduction in expenditures for 
education and promotion.
    The major expenditures recommended by the Committee for the 2009-10 
year include $700,000 for education and promotion, $475,500 for 
salaries, $320,000 for research, and $70,000 for employee retirement. 
Budgeted expenses for these items in 2008-09 were $1,200,000, $505,500, 
$320,000, and $77,000, 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 50 million 
cartons, which should provide $1,375,000 in assessment income. Income 
derived from handler assessments, along with interest income and income 
from the USDA Market Access Program (MAP), will be adequate to cover 
budgeted expenses. Funds in the reserve (currently $502,000) will 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 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 2009-10 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 100 producers of tomatoes in the production 
area and approximately 70 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

[[Page 57059]]

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 2008-09 season was approximately 
$8.13 per 25-pound carton, and total fresh shipments for the 2008-09 
season were 47,054,853 25-pound cartons of tomatoes. Committee data 
indicates 10 percent of the handlers handle 56 percent of the total 
volume shipped outside the regulated area. Based on the average price 
and the other data available, a majority 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 2009-10 and subsequent 
fiscal periods from $0.0375 to $0.0275 per 25-pount carton of tomatoes. 
The Committee unanimously recommended 2009-10 expenditures of 
$1,910,500 and an assessment rate of $0.0275 per 25-pound container. 
The assessment rate of $0.0275 is $0.01 lower than the 2008-09 rate. 
The quantity of assessable tomatoes for the 2009-10 season is estimated 
at 50 million. Thus, the $0.0275 rate should provide $1,375,000 in 
assessment income. Income derived from handler assessment income, along 
with interest income and funds from the MAP program will be adequate to 
cover budgeted expenses.
    The major expenditures recommended by the Committee for the 2009-10 
year include $700,000 for education and promotion, $475,500 for 
salaries, $320,000 for research, and $70,000 for employee retirement. 
Budgeted expenses for these items in 2008-09 were $1,200,000, $505,500, 
$320,000, and $77,000, respectively.
    The Committee recommended the decrease in assessment rate due to a 
reduction in expenditures for education and promotion.
    The Committee reviewed and unanimously recommended 2009-10 
expenditures of $1,910,500 which included decreases in education and 
promotion, salaries, employee retirement, and payroll expenses. Prior 
to arriving at this budget, the Committee considered information from 
various sources, such as the Committee's Finance, Research, and 
Education and Promotion Subcommittees. Alternative expenditure levels 
were discussed by these groups, based upon the relative value of 
various projects to the tomato industry. The assessment rate of $0.0275 
per 25-pound carton of assessable tomatoes was then determined by 
dividing the total recommended budget by the quantity of assessable 
commodity, estimated at 50 million 25-pound cartons for the 2009-10 
season. Considering income from assessments, interest, and income from 
other sources, total income will be approximately $41,500 above the 
anticipated expenses, which the Committee determined to be acceptable.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the grower 
price for the 2009-10 season could range between $3.89 and $19.01 per 
25-pound carton of tomatoes. Therefore, the estimated assessment 
revenue for the 2009-10 season as a percentage of total grower revenue 
could range between .1 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 
20, 2009, 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 final rule, 
including the regulatory and informational impacts of this action on 
small businesses.
    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: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to 
Jay Guerber 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 2009-10 fiscal year began on August 1, 2009, 
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) this action decreases the assessment rate for 
Florida tomatoes beginning with the 2009-10 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 final 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.


0
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, 2009, an assessment rate of $0.0275 per 25-
pound

[[Page 57060]]

carton is established for Florida tomatoes.

    Dated: October 27, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-26462 Filed 11-3-09; 8:45 am]
BILLING CODE 3410-02-P