[Federal Register Volume 78, Number 247 (Tuesday, December 24, 2013)]
[Proposed Rules]
[Pages 77604-77606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30558]

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.


Federal Register / Vol. 78, No. 247 / Tuesday, December 24, 2013 / 
Proposed Rules

[[Page 77604]]


Agricultural Marketing Service

7 CFR Part 966

[Doc. No. AMS-FV-13-0076; FV13-966-1 PR]

Tomatoes Grown in Florida; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.


SUMMARY: This proposed rule would increase the assessment rate 
established for the Florida Tomato Committee (Committee) for the 2013-
14 and subsequent fiscal periods from $0.024 to $0.0375 per 25-pound 
carton of tomatoes handled. The Committee locally administers the 
Federal 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 
would remain in effect indefinitely unless modified, suspended, or 

DATES: Comments must be received by January 8, 2014.

ADDRESSES: Interested persons are invited to submit written comments on 
this proposed 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 
proposed 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.

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: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, 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: [email protected].

SUPPLEMENTARY INFORMATION: This proposed 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 proposed rule 
in conformance with Executive Orders 12866 and 13563.
    This proposed 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 Florida tomatoes beginning on August 1, 2013, 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 proposed rule would increase the assessment rate established 
for the Committee for the 2013-14 and subsequent fiscal periods from 
$0.024 to $0.0375 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 of goods and services in their local area and are therefore 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 2012-13 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate of $0.024 per 25-
pound carton of tomatoes 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, 2013, and unanimously recommended 
2013-14 expenditures of $1,824,600 and an assessment rate of $0.0375 
per 25-pound carton of Florida tomatoes. In comparison, last year's 
budgeted expenditures were $1,672,952. The assessment rate of $0.0375 
is $0.0135 higher than the rate currently in effect. The Committee 
depleted its reserve by using the funds to help meet its annual 
expenditures over the past year. Therefore, the Committee recommended

[[Page 77605]]

increasing the assessment rate to generate sufficient funds to cover 
expenditures and increase its reserve balance.
    The major expenditures recommended by the Committee for the 2013-14 
year include $800,000 for education and promotion, $458,500 for 
salaries, and $300,000 for research. Budgeted expenses for these items 
in 2012-13 were $750,000, $436,372, and $250,000, respectively.
    The assessment rate recommended by the Committee was derived by 
reviewing anticipated expenses; expected shipments of Florida tomatoes; 
income from interest, Market Access Program funds, and specialty crop 
block grants; and the need to add additional funds to the reserve. 
Florida tomato shipments for the year are estimated at 35 million 25-
pound cartons, which should provide $1,312,500 in assessment income. 
Income derived from handler assessments, interest, and other sources 
would be adequate to cover budgeted expenses. Reserve funds projected 
to be $440,500 would be kept within the maximum permitted by the order 
of no more than approximately 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 
    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 to modify 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 2013-14 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 proposed 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 
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 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 subject to 
regulation under the marketing order and approximately 100 producers in 
the production area. 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 of less than $750,000 (13 CFR 121.201).
    Based on industry and Committee data, the average annual price for 
fresh Florida tomatoes during the 2012-13 season was approximately 
$10.64 per 25-pound carton, and total fresh shipments were 
approximately 35.5 million cartons. 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 proposal would increase the assessment rate for the 2013-14 
and subsequent fiscal periods from the current rate of $0.024 to 
$0.0375 per 25-pound carton of tomatoes. The Committee unanimously 
recommended the increased assessment rate and 2013-14 expenditures of 
$1,824,600. The increase was recommended to generate sufficient funds 
to cover the Committee's expenditures and add to its reserve. As 
previously stated, income derived from handler assessments, interest, 
and other income would be adequate to meet this year's anticipated 
    A review of historical information and preliminary information 
pertaining to the upcoming season indicates that the grower price for 
the 2013-14 season should average around $9.73 per 25-pound carton of 
tomatoes. Utilizing this estimate and the proposed assessment rate of 
$0.0375, estimated assessment revenue as a percentage of total grower 
revenue would be approximately 0.4 percent for the season.
    Alternative expenditure and assessment levels were discussed prior 
to arriving at this budget. However, the Committee agreed on $1,824,600 
in expenditures, reviewed the quantity of assessable tomatoes and the 
need to add additional funds to the reserve, and recommended an 
assessment rate of $0.0375 per 25-pound carton of tomatoes.
    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. These costs would be 
offset by the benefits derived from 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 meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the August 
22, 2013, 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 
    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 
more opportunities for citizens to access Government information and 
services, and for other purposes.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this action.
    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/MarketingOrdersSmallBusinessGuide.

[[Page 77606]]

Any questions about the compliance guide should be sent to Jeffrey 
Smutny at the previously-mentioned address in the FOR FURTHER 
    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 2013-14 fiscal period began on August 1, 2013, 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) 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.

List of Subjects in 7 CFR Part 966

    Marketing agreements, Reporting and recordkeeping requirements, 

    For the reasons set forth in the preamble, 7 CFR part 966 is 
proposed to be amended as follows:


1. The authority citation for 7 CFR part 966 continues to read as 

    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, 2013, an assessment rate of $0.0375 per 25-
pound carton is established for Florida tomatoes.

    Dated: December 17, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-30558 Filed 12-23-13; 8:45 am]